KY: Smell of burning marijuana from a house alone is not exigency

The entry here could not be justified as a protective sweep because of a lack of reason to believe the person sought was there. It also can’t be justified by exigency because of the smell of burning marijuana alone. Nothing else supported exigency, such as flushing of toilets or people rushing around inside. Commonwealth v. Norton, 2021 Ky. App. LEXIS 4 (Jan. 8, 2021):

As noted, the trial court found no evidence that any person in the apartment was in imminent danger or in need of immediate assistance. At the time the troopers entered the apartment, they only had a suspicion that M.B. could be there. Furthermore, they had no direct information that Harris, the person suspected of the firearm theft, was with him at the time. And while the smell of an illegal substance may provide probable cause for a search warrant, it is not sufficient to justify a warrantless search absent a showing of exigent circumstances. King v. Commonwealth, 386 S.W.3d 119, 122 (Ky. 2012).

Similarly, the mere possibility that evidence may be destroyed is not sufficient to provide exigent circumstances to justify a warrantless entry. Id. at 122-23. Although the troopers noted the smell of burnt marijuana, there was no testimony, such as the sound of flushing toilets or a garbage disposal, to suggest that evidence was being destroyed. And the suspected firearms could not be so easily destroyed. Consequently, we agree with the trial court that the Commonwealth failed to demonstrate exigent circumstances justifying the warrantless search of Norton’s apartment. Because the warrant was based entirely on information obtained in the initial searches, we also conclude that the trial court properly suppressed the evidence seized during the execution of the warrant.