Officers can use the smell of marijuana to justify search of homes

The seven judges on the Kansas Supreme Court recently ruled that the smell of cannabis is a reasonable justification for police to look through a house without a warrant. The 4-3 ruling issued on Dec. 7, says that an officer’s discovery of a pot smell is enough reason to lead a warrantless pursuit.

Kansas already permits police officers to search vehicles without a warrant if they smell marijuana. After the Supreme Court ruling, authorities can search the private residences, too. Critics of the ruling say it raises several constitutional and civil right issues.

The state argues that by the time the police can get warrant, the suspect might have already hid or destroyed the evidence.

The ruling came in a case where Lawrence police entered a man’s apartment to search after saying they detected a strong smell of marijuana. Lawrence Hubbard appealed his conviction on misdemeanor drug charges, arguing that the Lawrence officers could not justify the search without a search warrant based only on their ability to smell, according to Associated Press.

According to an online journal, cjonline, Supreme Court justices on a 4-3 vote rejected arguments put forth by Hubbard’s attorney, including questions about whether Lawrence Police Officer Kimberly Nicholson and one of her peers had to be an expert in pot odor to testify about the justification for the search of the apartment. Hubbard also challenged whether Nicholson can detect the “strong odor of raw marijuana emanating from the apartment” while standing outside 30 feet away from the building’s front door.

Justice Dan Biles, who wrote the majority opinion released Friday sustaining the Court of Appeals’ decision in 2016 upholding the convictions, said officers didn’t have to perform a sophisticated sensory task to proceed with reasonable action intended to prevent possible destruction of evidence.

“We are not dealing with sommeliers trying to identify a white wine as a Loire Valley Chenin Blanc,” he wrote in the decision.

The closet holding the safe was an estimated 30 feet from where Nicholson said she first inhaled evidence of unsmoked marijuana, said Jim Rumsey, the Lawrence attorney representing Hubbard.

“From 30 feet away, we’re supposed to believe she can smell raw marijuana?” Rumsey said. “I’d suggest no reasonable person could do that.” Douglas County assistant district attorney Kate Butler, who argued the state’s case in Hubbard’s trial, described the arresting officers as “very familiar with the smell of marijuana”. During the testimony, the officers described the smell as overwhelming, potent and very strong”.

Hubbard was found guilty in Douglas County District Court of possession of marijuana and possession of drug paraphernalia. He received two 12-month sentences and was granted probation.

It can be difficult to pinpoint the odor of cannabis as the smell is mobile and can move through open windows, passing cars or nearby pedestrians. However, the distinct smell of weed has been a strong tool for law enforcement. Like in Hubbard’s case, if the marijuana smell is plausible and there is a possibility that evidence will be destroyed, it counts as an emergency justifying a warrantless search.