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Kansas Supreme Court Rules Smell of Pot Enough to Justify Police Searching a Home

by High Times | Updated on 12.12.18

The seven justices on the Kansas Supreme Court ruled today that marijuana odor constitutes probable cause for police to search a private residence without a warrant, the AP is reporting. The 4-3 ruling says that an officer’s detection of a marijuana smell is enough cause to conduct a warrantless search. The case wound up in state supreme court after a lower court failed to demonstrate the lawfulness of a police search of the home of Lawrence Hubbard. During a sweep, police found roughly an ounce of cannabis in a closed container in a closet of Hubbard’s home.

Supreme Court Says If Police Smell Weed, They Can Search a Home Without a Warrant

Kansas police arrested Lawrence Hubbard in November 2013 after entering his apartment and discovering about 25 grams of cannabis locked inside a safe. Police also say they found a small amount of weed in a half-smoked cigarillo. In court, Hubbard’s defense attorney argued to suppress the evidence of drugs, on the grounds that the initial warrantless search violated Hubbard’s constitutional rights.

Furthermore, Hubbard’s defense challenged the testimony of the arresting officers as expert witnesses. Defense attorney Jim Rumsey argued “no reasonable person” would be able to detect an ounce of cannabis in a container, inside a safe, inside a closet 30 feet away from a closed apartment door.

But in the majority opinion, Justice Dan Biles upheld Hubbard’s misdemeanor conviction on drug charges. Biles wrote that officers don’t have to be cannabis experts to know what weed smells like, and that smelling weed is not a complex sensory task. “We are not dealing with sommeliers trying to identify a white wine as a Loire Valley Chenin Blanc,” Justice Biles wrote. The dissenting opinion, authored by Justice Carol Beier, said the courts should reverse Hubbard’s convictions and vacate his probation sentence.

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 their testimony, the officers described the smell as “overwhelming, potent and very strong.”

Court Uses “Marijuana Smell” To Justify Warrantless Searches

Kansas already permits police officers to search vehicles without a warrant if they smell marijuana. Today’s Supreme Court ruling essentially extends that authority to the search of private residences. Critics of the ruling say it raises a number of constitutional and civil rights issues.

In the first place, a police officer’s claim to have detected a marijuana odor isn’t falsifiable. There’s no standard of evidence or burden of proof that can show conclusively an officer did not smell weed. Conversely, there’s no way for an officer to prove that they actually smelled weed. Thus, simply by saying they smell cannabis, an officer has the authority to conduct a warrantless search of someone’s home or vehicle.

Additionally, marijuana odors are notoriously mobile. Smells can creep under doors and down hallways, move through open windows and from passing vehicles and pedestrians. In other words, it can be very difficult to pinpoint the origin of a marijuana odor. Yet the tell-tale smell of marijuana has always been a potent tool for law enforcement. A whole industry exists to provide products and techniques to hide the smell of marijuana for consumers requiring discretion.

Then, there’s the question of human olfactory capability. How much weed triggers a sense of its smell? How near or far does a person have to be to smell weed or not smell it? What length of time does the smell linger? These were all questions Rumsey posed to the court. But they did not sway the majority opinion of the justices. Some states have passed laws eliminating marijuana odor as probable cause, like Arizona and Massachusetts.

The post Kansas Supreme Court Rules Smell of Pot Enough to Justify Police Searching a Home appeared first on High Times.

High Times

Written by High Times

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(79)
  • burrkitty
    Voted Oppose
    12/12/2018
    ···

    I don’t think much short of imminent violence or endangered children constitutes the right of police to a unwarranted search and seizure. If no one is in danger, get a warrant. Weed doesn’t constitute danger. Even if you smell it (and it IS distinctive and immediately identifiable) get a damn warrant.

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  • ConservativeGuy
    12/12/2018
    ···

    Police should not be allowed to search your home unless there is a verifiable danger to somebody inside or they have a warrant. I feel the same way about vehicles but realize that I would lose that argument.

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  • SneakyPete
    Voted Support
    12/12/2018
    ···

    THE PROOFS IN THE PUDDING FOLKS I’m in agreement with the seven justices on the Kansas Supreme Court ruled today that marijuana odor constitutes probable cause for police to search a private residence without a warrant, the AP is reporting. The 4-3 ruling says that an officer’s detection of a marijuana smell is enough cause to conduct a warrantless search. SneakyPete..... 🤔👍🏻👍🏻🤔. 12*12*18.....

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  • John
    Voted Oppose
    12/12/2018
    ···

    We need to get over criminalizing the use of marijuana. I’m a well educated individual, masters degree, multiple certifications in my field of electronics. I don’t drink much but boy howdy i love to some up after a long day. Not a violent criminal, not lazy, yes i do get the munchies. Leave us pot smokers alone.

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  • ManfromNebraska
    Voted Support
    12/12/2018
    ···

    You do the crime you do the time!

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  • JTJ
    12/12/2018
    ···

    This is a state law issue. If people in Kansas don’t like it then they need to petition their local legislature. Why are we talking about it here?

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  • Donelle
    Voted Oppose
    12/12/2018
    ···

    What I do in my own home is not your business - and unless you have a warrant you have no right to enter my property.

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  • David
    Voted Oppose
    12/12/2018
    ···

    Kansas believes rights belong to Republicans and the rich only, especially rich Republicans. If you want to search someone’s home or property, get a warrant to do so.

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  • J. scott
    Voted Oppose
    12/18/2018
    ···

    Total nonsense - thankfully we don’t need to worry about that in Colorado...... at least for now.

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  • Tooluser1
    Voted Oppose
    12/12/2018
    ···

    Coupled with civil forfeiture, this will allow any crooked cop to enter and seize ANY home, ANY property, ANY time they want. This IS NOT JUSTICE, this is legalized home invasion and thievery!

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  • Lionman
    Voted Oppose
    12/12/2018
    ···

    This is an area that’s too grey right now. Given that an apartment complex could provide false positives with neighbors next door, above or below. And if this IS going to continue as a policy, then officers actually should receive semi-frequent training to insure they haven’t lost their ability to smell, since this now seems to be part of the key abilities of the job.

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  • Joseph
    Voted Oppose
    12/12/2018
    ···

    This is not a police state it is corruption Officer

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  • Christopher
    Voted Oppose
    12/12/2018
    ···

    How about the stench of corruption, malfeasance, and abuse by a State Government that can hardly manage its financial position?

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  • Tooluser1
    Voted Oppose
    12/12/2018
    ···

    So an entirely subjective, utterly UNVERIFIABLE *smell* is enough "justification" to waive all Constitutional Rights? Why have a Constitution at all? *sniff, sniff* I smell an oppressive police state!

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  • Riley
    Voted Oppose
    12/12/2018
    ···

    This is a violation of privacy.

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  • Page
    Voted Oppose
    12/13/2018
    ···

    Smell is subjective and does not meet the burden of proof needed to search a home legally.

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  • DestroVega
    Voted Oppose
    12/12/2018
    ···

    Who determines if they can smell marijuana? This is absolutely ridiculous.

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  • Leah
    Voted Oppose
    12/12/2018
    ···

    Marijuana wasn’t even illegal until 1930 as a scare tactic against immigrants (look it up). Marijuana isn’t harmful and it’s being used as a scare tactic again for republicans against minorities. This is just dumb. We could be using it for health treatment and collecting taxes.

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  • John
    Voted Oppose
    12/12/2018
    ···

    That has to be without a shadow of a doubt one of the stupidest things I’ve ever heard in my life. Are we now going to have sniffed patrols. With police officers with their nose in the air.

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  • Michelle
    Voted Oppose
    12/13/2018
    ···

    This is beyond stupid

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  • Red
    Voted Oppose
    12/12/2018
    ···

    This is definitely violating our constitutional rights!! Because the cops cannot prove that they did smell it and that a victim of a warrantless search cannot prove the opposite (that there was no smell)

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