Five years ago the U.S. Supreme Court refused to endorse a principle that could have allowed any cop with a dog to search any home. The court ruled that deploying a drug-detecting canine at the doorstep of a suspected marijuana grower's house in the hope of obtaining probable cause for a warrant (which requires nothing more than a claim that the dog "alerted") itself constitutes a search under the Fourth Amendment.
But what if a cop without a dog claims his own nose detects marijuana inside a home? In that case, the Kansas Supreme Court recently ruled, the alleged odor provides probable cause for a search, which the cop can execute without waiting for a warrant if he says he was afraid the contraband he thought he smelled might be hidden or destroyed in the interim. In practice, the 4-to-3 decision, issued on December 7, gives police carte blanche to search any home at will.
If you doubt that characterization, consider the dubiousness of the odor that supposedly justified a search of Lawrence Hubbard's apartment. Lawrence, Kansas, police officer Kimberly Nicholson followed Hubbard home after mistaking him for someone with an arrest warrant. As Hubbard exited his apartment to clear up the misunderstanding, Nicholson testified, she "smelled a strong odor of raw marijuana emanating from the apartment." She claimed she was standing about two feet from the front door, while Hubbard said it was more like six or seven feet.
What police ultimately discovered was 25 grams (less than an ounce) of marijuana, which was inside a sealed plastic container, inside a locked safe, inside a bedroom closet about 30 feet from where Nicholson was standing. The cops also found "a small amount of marijuana on a partially burnt cigarillo in the living room," which would have smelled like burnt marijuana, not "raw marijuana" (by which Nicholson presumably meant cured marijuana, as opposed to growing or freshly harvested plants). Another officer, Ronald Ivener, nevertheless testified that he also smelled "raw marijuana" while standing outside the apartment, an odor he described as "potent" and "overwhelming."
You might speculate that Nicholson caught a whiff of the cigarillo as Hubbard opened his door and confused the smell of burnt marijuana with the smell of "raw marijuana." But that hardly seems possible in light of Nicholson's extensive training and experience. "As part of her law enforcement training and while in her official capacity," the trial judge noted, "Officer Nicholson has detected the smell of raw marijuana 200 to 500 times and burnt MJ 100 to 300 times." So either she was exaggerating her ability to distinguish "raw marijuana" from burnt marijuana by odor, or she was asserting a superhuman (and maybe even supercanine) ability to detect Hubbard's triply contained stash from a distance of 30 feet.
