“[T]here is no difference between burnt and fresh-smelling marijuana in a probable cause analysis”

The smell of burnt marijuana plus the defendant’s admission of recently smoking marijuana gave a reasonable probability that marijuana would be in the vehicle. There is no difference, at least in the Sixth Circuit, between the smell of burnt and fresh marijuana for probable cause purposes. United States v. Robinson, 2007 U.S. Dist. LEXIS 53290 (E.D. Tenn. July 23, 2007):

Additionally, as the magistrate judge pointed out, the Sixth Circuit has explicitly indicated there is no difference between burnt and fresh-smelling marijuana in a probable cause analysis. See United States v. Foster, 376 F.3d 577 (6th Cir. 2004). In Foster the Sixth Circuit determined when officers detected the smell of marijuana coming from the defendant’s vehicle, probable cause was established to search it without a warrant. Id. at 588. The officers’ testimony regarding whether they smelled fresh or burnt marijuana was conflicting. Id. at 583-84. At the suppression hearing in Foster, one of the officers testified he smelled burnt marijuana and at the trial, another officer testified he smelled fresh marijuana coming from defendant’s vehicle. Id. at 582 n.4. The Sixth Circuit noted this inconsistency was not significant and would not alter the ultimate outcome of its probable cause analysis. Id. at 584 (finding the odor of marijuana emanating from a vehicle provided officers with probable cause to search a vehicle, regardless of “whether it was burnt or fresh-smelling marijuana”).

State officers’ failure to comply with state law on nighttime searches is irrelevant in a federal prosecution. Also, F.R.Crim.P. 41 does not apply to a state warrant. The warrant is examined in federal court under the Fourth Amendment. United States v. Barrett, 496 F.3d 1079 (10th Cir. 2007). Comment: This is settled law. I went down this road many years ago. Arkansas has a relatively stringent nighttime search rule, and the police clearly failed to comply with it, and my motion to suppress in state court would have been granted. Seeing this coming, the state prosecutor nolle prossed before the suppression hearing, and the client was indicted in federal court about two weeks later, where I could not win. My only issue was a violation of state law and not the Fourth Amendment. So, watch out what you ask for. The client in that case probably came out about the same on the time served in prison because a significant quantity was involved, but, in some cases, it could be significantly different, such as a crack case that goes federal. It also requires defense lawyers assess the risk that the case could go federal if the state throws in the towel on your motion. Then there is the Petit policy: if the state case went to conclusion, the federal government is far less likely to take it over.

Reliance on third party’s ability to consent was reasonable because surveillance put him there for several days before the entry based on consent. United States v. Meza-Beltran, 2007 U.S. Dist. LEXIS 53329 (D. Ariz. July 23, 2007):

Here, the Court finds that Agent Henry and Officer Biascoechea’s observation of Edgardo’s apparent authority over the home was reasonable and warranted by the totality of the circumstances. The officers reasonably relied on Edgargo’s appearance of control over the home and his comment that Arturo, the adult they anticipated to find, was not home at the time.