January 11, 2019
Marijuana is still illegal in most states. Take Kansas, for instance.
Since pot is illegal, if an officer detects the odor of unburnt marijuana, whether in a car or in a house, he probably has reasonable suspicion to take further investigative steps, which may include a search without a warrant. But how good is an officer’s olfactory ability?
In this particular case, it’s, well, amazing.
In the Kansas case, officers claimed to be able to smell unburnt marijuana from their vantage point outside the defendant’s apartment. Based on what the officers described as an odor of raw pot that was “overwhelming, potent and strong,” they entered the house and searched it without a warrant.
And they found pot.
But there was less than an ounce of it, and it was sealed inside a Tupperware container that was in a safe in a closet about thirty feet from where the officers were standing outside. Does anyone honestly believe the officers could have detected the odor of that pot?
Well, four of the seven justices on the Kansas Supreme Court did. And that made a majority, so the search was ruled legal, and, earlier this week, the conviction was affirmed.
Many many years ago I was trying a “plain smell” case, and the officer testified, on the stand, under oath, that he could smell better than a drug-sniffing dog. And the judge bought his testimony.