Odor of burning marijuana coming from a house is enough to justify a search warrant for the house for the marijuana, even in the face of a claim that only a small amount of marijuana would be found. United States v. Kilgore, 2012 U.S. Dist. LEXIS 154148 (N.D. Ga. September 13, 2012):<\/p>\n
Kilgore contends that the information provided by Rawlings and the odor of burnt marijuana did not establish probable cause to search his residence, asserting that “it only tends to indicate the recent presence of a small amount of marijuana.” [Doc. 50 at 4-5]. Kilgore’s arguments, however, ignore the fact that the basis for the warrant for which probable cause was established was possession under O.C.G.A. \u00a7 16-13-30(a), see (Gov. Ex. 1), and courts have routinely found probable cause existed to search a residence based on a marijuana odor detected by law enforcement officers, see United States v. Yarbrough, 272 F. App’x 438, 443 (6th Cir. 2007) (per curiam) (unpublished) (citations omitted) (“[A]n officer’s detection of the smell of marijuana in a home may by itself establish probable cause,” and “[w]hen the smell of marijuana is coupled with [a] [ ] tip of drug activity, probable cause exists for a search warrant.”); United States v. Tobin, 923 F.2d 1506, 1512 (11th Cir. 1991) (citation omitted) (“There is no doubt that the agent’s suspicions rose to the level of probable cause when, as the door stood open, he detected what he knew from his law enforcement experience to be the odor of marijuana.”) ; United States v. Harwell, 426 F. Supp. 2d 1189, 1196 (D. Kan. 2006) (citation omitted) (“The odor of burning marijuana emanating from the open front door of a single home would lead a reasonable officer to believe that marijuana was probably present in the residence.”); see also Johnson v. United States, 333 U.S. 10, 13 (1948); United States v. Noriega, 676 F.3d 1252, 1261 (11th Cir. 2012); United States v. Cephas, 254 F.3d 488, 495 (4th Cir. 2001); United States v. Kittrell, No. CR 10-2903-TUC-RCC (JCG), 2011 WL 2746252, at *9 (D. Ariz. May 20, 2011), adopted by 2011 WL 2784618, at *1 (D. Ariz. July 13, 2011) (citation omitted); United States v. Neth, No. 6:09-cr-210-Orl-19GJK, 2010 WL 1257695, at *7-8 (M.D. Fla. Mar. 30, 2010); Floyd v. United States, Civil Action No. 3:08cv133-MEF, 2010 WL 1052839, at *7 (M.D. Ala. Feb. 18, 2010), adopted by 2010 WL 1197707, at *1 (M.D. Ala. Mar. 23, 2010); United States v. Murat, No. 08-20479-CR, 2008 WL 4394788, at *13 (S.D. Fla. Sept. 26, 2008), adopted at *1; United States v. Correa, No. 1:07-cr-00011-MP-AK, 2008 WL 1804309, at *12 (N.D. Fla. Apr. 18, 2008). In short, the totality of the circumstances presented in the affidavit, when taking a “realistic and commonsense approach” and not viewing the affidavit in a “hypertechnical manner,” established probable cause for the search warrant for Kilgore’s residence for the crime of unlawful possession of marijuana. Miller, 24 F.3d at 1361 (citation omitted).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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