{"id":3774,"date":"2013-03-09T10:00:33","date_gmt":"2010-01-27T08:49:31","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-01-27T08:49:31","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=3774","title":{"rendered":"KY: No hot pursuit; odor of marijuana not exigency for entry of home"},"content":{"rendered":"

Alleged exigency here was police created, and the police were not in hot pursuit at the time of the entry. While the odor of marijuana would be exigent circumstances for an automobile, it cannot be for a home. King v. Commonwealth<\/a>, 302 S.W.3d 649 (Ky. 2010):<\/p>\n

Odor alone is generally an insufficient basis for the warrantless search of a home based on imminent destruction of evidence. In Johnson v. United States<\/a>, 333 U.S. 10, 15, 68 S. Ct. 367, 92 L. Ed. 436 (1948), the Supreme Court held the warrantless search of a hotel room invalid where the officers detected “a strong odor of burning opium which to them was distinctive and unmistakable.” Id. at 12. The Court stated that an odor, sufficiently distinctive to be recognized as an illegal substance, and detected by one qualified to recognize it, can be sufficient to justify the issuance of a warrant. Id. at 13. However, odor alone did not justify a warrantless search based on imminent destruction of evidence: “No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time will disappear. But they were not capable at any time of being reduced to possession for presentation to court.” Id. at 15.<\/p>\n

The odor of marijuana alone can justify the warrantless search of an automobile<\/em>. Cooper v. Commonwealth, 577 S.W.2d 34, 37 (Ky. 1979), overruled on other grounds by Mash v. Commonwealth, 769 S.W.2d 42 (Ky. 1989). However, there is a strong distinction in Fourth Amendment jurisprudence between an automobile and a home. The mobility of an automobile creates an exigent circumstance per se. Maryland v. Dyson<\/a>, 527 U.S. 465, 467, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (1999) (citing Pennsylvania v. Labron<\/a>, 518 U.S. 938, 940, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996)). By contrast, “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton<\/a>, 445 U.S. at 585 (quoting United States v. United States District Court<\/a>, 407 U.S. 297, 313, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972)).<\/p>\n

We also note that, in some circumstances, the odor of an illegal substance alone will create exigent circumstances justifying a warrantless search. This is particularly true where public safety is a concern. See, e.g., Bishop v. Commonwealth, 237 S.W.3d 567 (Ky. App. 2007) (strong chemical smell consistent with production of methamphetamine created exigent circumstances based on public safety due to inherent dangers in methamphetamine production). However, such circumstances are not present in this case.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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