KS: Smell of MJ at def’s door was PC it was inside; protective sweep valid

The smell of marijuana at defendant’s door was probable cause there was marijuana inside, and that justified a protective sweep to secure the premises pending getting a warrant. State v. Hubbard, 2018 Kan. LEXIS 592 (Dec. 7, 2018):

We hold that the totality of the circumstances surrounding a law enforcement officer’s detection of the smell of raw marijuana emanating from a residence can supply probable cause to believe the residence contains contraband or evidence of a crime. See State v. Howard, 305 Kan. 984, 990, 389 P.3d 1280 (2017) (noting probable cause for search exists when totality of circumstances indicate fair probability location contains contraband or evidence of a crime, including all information in officer’s possession, fair inferences from it, and any other relevant facts); State v. Hicks, 282 Kan. 599, 147 P.3d 1076 (2006). Such circumstances include, but are not limited to, proximity to the odor’s source, reported strength of the odor, experience identifying the odor, elimination of other possible sources of the odor, and the number of witnesses testifying to the odor’s presence. This is ultimately a case-by-case determination based on the circumstances. Not all cases relying on odor will have the same result.

We further hold the district court did not err when it concluded the officers had probable cause to believe contraband or evidence of a crime were in Hubbard’s apartment. Both testified they detected raw marijuana odor. Nicholson testified she was only about 2 feet from Hubbard’s front door when she smelled the odor coming from the apartment. Ivener also detected the odor and characterized it as “strong” and “potent.” And the court accepted Nicholson’s training and experience in detecting both raw and burnt marijuana in its ruling. As to Hubbard’s concerns that the officers’ sense of smell was skewed by bias, inaccuracies, or ill-intent, or unbelievable because the marijuana was discovered in a bedroom safe, those contentions were resolved by the district court’s findings and its credibility determinations inherent in those findings.

Criticized here: Techdirt: Kansas Supreme Court Says Cops Can Search A House Without A Warrant As Long As They Claim They Smelled Marijuana by Tim Cushing.

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