Smell of ether alone is not enough to justify search of a car; more is required

The Kansas Supreme Court held that the smell of ether alone coming from a car after a traffic stop did not justify a search of the car. It was as consistent with lawful activity as unlawful activity. The court distinguishes cases where the smell of ether was corroborating an informant’s story. State v. Ibarra, 282 Kan. 530, 147
P.3d 842 (2006) (citing Annot., Validity of Warrantless Search Based in Whole or in Part on Odor of Narcotics other than Marijuana, or Chemical Related to Manufacture of Such Narcotics, 115 A.L.R.5th 477, and discussing cases from many states).

The 9 page affidavit for the search warrant in this case made only a fleeting mention to defendant’s car. When describing the places to be searched with the reasons why there was probable cause, there was no connection shown to the car, so there was no probable cause to search the car. Turning to the good faith exception, the court finds that it does not apply because the police, who prepared the affidavit, were effectively blaming the magistrate for the affidavit’s deficiencies. The good faith exception did not apply. United States v. Harvey, 2006 U.S. Dist. LEXIS 88590 (D. V.I. November 29, 2006):

The Zimmerman Court noted that “[g]ood faith is not a magic lamp for police officers to rub whenever they find themselves in trouble.” Id. (quoting United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996)). This is particularly true where the affiant is also one of the executing officers.

In Zimmerman, the officer who applied for the warrant was also the author of the supporting affidavit and was one of the executing officers. Id. The court reasoned that

“it is somewhat disingenuous, after having gone to the magistrate with the paltry showing seen here, to suggest . . . that at bottom it was the magistrate who made the error and the search and seizure are insulated because the officer’s reliance on that error was objectively reasonable.”

Id. This disingenuousness aside, the Zimmerman Court noted that, “[t]he good faith exception requires a sincerely held and objectively reasonable belief that the warrant is based on a valid application of the law to all known facts.” Id. (quoting Reilly, 76 F.3d at 1273). Moreover, “[t]he objective standard ‘requires officers to have a reasonable knowledge of what the law prohibits.'” Id. (quoting Leon, 468 U.S. at 919-20 n.20).

Except for its initial mention in the list of items to be seized, the affidavit in this case makes no mention of the Acura or its involvement in the drug conspiracy under investigation. Here, as in Zimmerman, the one purported reference to the item to be seized occurs at the end of a lengthy affidavit. The reference to a “car” in Paragraph 27 is more vague and fleeting than the reference to adult pornography in the Zimmerman affidavit that the court held to be “marginal evidence at best.” Id. at 437. Additionally, like the pornography reference in Zimmerman, the nebulous reference to “a car” in this case was outdated, as it was based on events that allegedly took place five months prior to the seizure.

Agent Goldfinger was the affiant and one of the executing officers in this case. Especially given his extensive involvement in the Title III investigation, Agent Goldfinger should have known that the marginal evidence contained in the affidavit could not support probable cause to seize the Acura. Thus, it would be “somewhat disingenuous” for the government to claim that the DEA agents were acting in good faith reliance on the magistrate’s decision to issue the warrant.