IN: Smell of burnt MJ in a house isn’t PC to believe the occupant is a drug dealer

The smell of burnt marijuana during a search of house is not probable cause to believe that the house contains marijuana for distribution. While it might be in a car, it’s not for a house. Also, a key fob was not “indicia of ownership” in a search warrant for a house, and it could not have been seized. Ogburn v. State, 2016 Ind. App. LEXIS 111 (April 18, 2016):

P20 Unlike the officers in Johnson, the officers in the present case had not received information that drug activity was taking place, nor spoken with any individuals who appeared to be under the influence of marijuana. Moreover, Officer Hosterman did not explain why he believed the odor originated from within Rockmore’s apartment, as opposed to a neighbor’s apartment. Although we have previously held the odor of burnt marijuana alone may constitute probable cause to search a vehicle, State v. Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002), trans. denied, we conclude the odor of marijuana here failed to provide a substantial basis for concluding a search of the apartment would uncover evidence of dealing in controlled substances, see Johnson, 32 N.E.3d at 1176-77. An odor of burnt marijuana alone would not establish probable cause to support the extensive search warrant issued in this case.

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P23 In short, the search of the residence conducted pursuant to the search warrant violated the Fourth Amendment because the second warrantless entry to photograph evidence was not justified by exigent circumstances, and the odor of marijuana noted during the first entry, without additional facts, fails to provide a substantial basis for concluding a search of the apartment would uncover evidence of dealing in controlled substances. But even if the odor of burnt marijuana alone would establish probable cause to support the search warrant issued for the apartment, the seizure of the key fob clearly exceeded the scope of the warrant. Either way, the piece of evidence that led the police to the Tahoe was obtained in violation of the Fourth Amendment.