TOPEKA, Kan. — A divided Kansas Supreme Court has ruled that police can rely exclusively on their sense of smell to provide probable cause for a preliminary search of a home for marijuana without a warrant.
The 4-3 ruling extends to residences already established practice in Kansas that allows police to search vehicles for marijuana based only on smells, The Topeka Capital-Journal reported.
The ruling issued Friday came in a case in which Lawrence police entered a man’s apartment without a warrant because they said they detected a strong smell of raw marijuana.
The justices rejected arguments by Lawrence Hubbard’s attorney that sought to suppress evidence of drugs because the initial warrantless search by Lawrence Police Officer Kimberly Nicholson and another officer violated his constitutional rights. The lawyer also argued Nicholson’s testimony that she smelled raw marijuana coming from the apartment was inadmissible expert testimony and questioned whether the officer could detect the smell of raw marijuana inside the apartment while standing outside the front door.
The majority opinion written by Justice Dan Biles that upheld Hubbard’s convictions said officers didn’t have to perform a sophisticated sensory task before performing the warrantless search.
“We are not dealing with sommeliers trying to identify a white wine as a Loire Valley Chenin Blanc,” he wrote in the decision.
The officers entered Hubbard’s apartment in November 2013. After later obtaining a search warrant, they found 25 grams of unsmoked marijuana in a closed Tupperware container locked inside a safe in a bedroom closet. A small amount of weed was detected on a partially burnt cigarillo in the living room.
The closet holding the marijuana was an estimated 30 feet from where Nicholson said she first smelled unsmoked marijuana, said Jim Rumsey, Hubbard’s attorney.
“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.”
Kate Butler, an assistant district attorney in Douglas County who argued the state’s case before the Supreme Court, said the officers properly established probable cause and the initial security sweep prevented someone inside apartment from destroying possible evidence of a crime.
“What we do have is two officers very familiar with the smell of marijuana testify using words such as ‘overwhelming, potent and very strong,’ ” Butler said.
A dissenting opinion authored by Justice Carol Beier said Hubbard’s convictions should be reversed and his sentence vacated.
Beier said a lower court ruling failed to demonstrate the lawfulness of the search warrant and determine whether police officers should have been qualified as expert witnesses.