On the facts of this case, the mere odor of marijuana wasn’t enough to show probable cause. The officers never explained why they believed that or what their training was. Bunnell v. State, 2020 Ind. App. LEXIS 538 (Dec. 18, 2020):
A. The odor of marijuana emanating from a residence may be sufficient by itself to establish probable cause for issuing a search warrant.
P15 Over seventy years ago, the Supreme Court of the United States declared that “the presence of odors” can establish probable cause to issue a search warrant if two conditions are met: (1) the issuing judicial officer “finds the affiant qualified to know the odor”; and (2) the odor “is one sufficiently distinctive to identify a forbidden substance.” Johnson v. United States, 333 U.S. 10, 13 (1948).
P16 In the years since Johnson, this court has consistently held, beginning with State v. Hawkins, 766 N.E.2d 749, 751-52 (Ind. Ct. App. 2002), trans. denied, that when a trained and experienced police officer detects the distinctive odor of a drug—such as raw or burnt marijuana—coming from a vehicle, the officer has probable cause to search that vehicle. See Marcum v. State, 843 N.E.2d 546, 548 (Ind. Ct. App. 2006); see also Shorter v. State, 144 N.E.3d 829, 838-39 (Ind. Ct. App. 2020) (detection of burnt synthetic drugs), trans. denied. Notably, however, in each of those decisions law enforcement’s qualifications to detect the odor were either not contested, Hawkins, 766 N.E.2d at 752, or were sufficiently established, Marcum, 843 N.E.2d at 548; Shorter, 144 N.E.3d at 839. The same was not true in State v. Holley, 899 N.E.2d 31 (Ind. Ct. App. 2008), trans. denied.
P17 In Holley, officers pulled over a vehicle and subsequently searched it after detecting “the smell of raw marijuana emanating” from the occupants. Id. at 32. The trial court granted Holley’s pretrial motion to suppress the evidence seized from the car. Id. at 33. On the State’s appeal, we noted that—unlike in Hawkins or Marcum—”the qualifications of the officers” to detect the odor “were in issue.” Id. at 35. And the lack of evidence for those qualifications was dispositive: “While there was evidence that [the officer] had encountered marijuana during the course of his duties, there was no evidence that he was qualified to know its odor or able to distinguish its odor from that of other substances.” Id. Thus, because the search was without probable cause, we affirmed the trial court. Id.
P18 Yet, unlike the decisions cited above, this case involves probable cause to issue a search warrant for a residence. While we acknowledge that a warrantless search of a vehicle must be based on the same degree of probable cause that would otherwise be sufficient to issue a search warrant for a residence, see California v. Carney, 471 U.S. 386, 394 (1985), there are differences in who makes the probable-cause determination and how that decision is later reviewed, see, e.g., 2 Wayne R. LaFave, Search & Seizure § 3.1(d) (6th ed. 2020). We thus find additional guidance from three Indiana cases that have addressed law enforcement’s sense of smell and its impact on probable cause in this context: Johnson v. State, 32 N.E.3d 1173 (Ind. Ct. App. 2015), trans. denied; Darring v. State, 101 N.E.3d 263 (Ind. Ct. App. 2018); and Ogburn v. State, 53 N.E.3d 464 (Ind. Ct. App. 2016), trans. denied.
P19 In Johnson and Darring, this court found that search-warrant affidavits, each of which included information about law enforcement’s detection of the odor of marijuana, established probable cause to issue a search warrant for a home. Johnson, 32 N.E.3d at 1177-78; Darring, 101 N.E.3d at 269-70. Importantly, however, the detection of marijuana in each case only supported the probable-cause determination: the affidavits included additional evidence to establish probable cause. For example, the affidavit in Johnson contained “information that illegal drug activity was taking place” at the residence. 32 N.E.3d at 1177. And in Darring, the affidavit indicated that officers found two marijuana plants by the homeowner’s shed, and it also included incriminating information from a neighbor. 101 N.E.3d at 266, 269-70. Further, the affiant—officer listed the relevant training and experience of the law-enforcement officials who detected the odor of marijuana. Id. at 266.
P20 In Ogburn, on the other hand, we held that an officer’s detection of the “odor of burnt marijuana alone” did not establish probable cause to search an apartment for evidence of dealing in controlled substances. 53 N.E.3d at 472-73. The panel reached this conclusion after making three observations: (1) there was no reported drug activity at the apartment; (2) no one had spoken with anyone at the apartment who appeared under the influence of marijuana; and (3) the affiant—officer failed to explain why he believed the odor emanated from Ogburn’s apartment, rather than a neighbor’s apartment. Id. at 473.
P21 Read together, these decisions demonstrate that, while law enforcement’s detection of the odor of marijuana can provide sufficient probable cause for a search, there is no per se rule giving police carte blanche authority to search—with or without a warrant—based solely on the odor. Like in Johnson and Darring, the odor coupled with other evidence may establish probable cause. Or like in Holley and Ogburn, there may be circumstances that undermine the otherwise strong inference of implied criminal activity—such as a lack of information about law enforcement’s relevant training or experience in identifying and distinguishing a particular odor, Holley, 899 N.E.2d at 35; see Edwards v. State, 832 N.E.2d 1072, 1080 n.11 (Ind. Ct. App. 2005) (recognizing that that detection of the smell of marijuana must be “by a trained and experienced police officer” to “support probable cause”); cf. Neuhoff v. State, 708 N.E.2d 889, 891 (Ind. Ct. App. 1999) (finding that a drug-sniffing dog’s alert “was sufficient in itself” to establish probable cause when the search-warrant affidavit detailed the dog’s relevant qualifications, experience, and training); Rios v. State, 762 N.E.2d 153, 159-60 (Ind. Ct. App. 2002) (same); Hoop v. State, 909 N.E.2d 463, 471 n.7 (Ind. Ct. App. 2009) (same), trans. denied. And this lack of information is particularly concerning in cases where detection of an odor is the only information in the affidavit “constituting probable cause.” I.C. § 35-33-5-2(c).
P22 In short, we recognize that the smell of marijuana emanating from a residence, when detected by law enforcement that is qualified to identify and distinguish the odor, by itself can establish probable cause for issuance of a search warrant. But when the smell of marijuana is the only evidence constituting probable cause, the search-warrant affidavit—or information otherwise before the issuing judge—must include some information regarding the detecting officers’ relevant qualifications, experience, or training in identifying and distinguishing the odor.
P23 To conclude otherwise would sanction a categorical presumption that every law-enforcement official is adequately trained in detecting and distinguishing the smell of marijuana. But such a presumption would conflict with Johnson’s mandate that a warrant-issuing judge find the “affiant qualified to know the odor” to constitute probable cause, 333 U.S. at 13, which must “be decided based on the facts of each case,” Figert v. State, 686 N.E.2d 827, 830 (Ind. 1997). While we are mindful that search warrants should not be invalidated by interpreting affidavits “in a hypertechnical, rather than a commonsense, manner,” we must also “conscientiously review the sufficiency of affidavits on which warrants are issued” to ensure probable cause is not “a mere ratification of the bare conclusions of others.” Gates, 462 U.S. at 236, 239. We believe our holding today strikes the appropriate balance.
P24 With these principles in hand, we now turn to the search-warrant affidavit here to determine whether it provided the issuing judge with a substantial basis for concluding that there was probable cause to search Bunnell’s home.
B. The affidavit does not demonstrate that the officers were qualified to identify and distinguish the odor of raw marijuana.
