Lit_Match

Marijuana Odor Insufficient for Warrantless Search
03.09.07|Salt Lake Tribune|By Pamela Manson

The odor of burning marijuana is insufficient to allow police to enter a residence without a warrant, the Utah Supreme Court ruled Friday.

In a 4-1 decision, the court said only a limited number of circumstances create an exception to the warrant requirement, such as preventing the imminent destruction of evidence. Smelling pot is not one of them, the ruling says.

"The aroma of marijuana must be accompanied by some evidence that the suspects are disposing of the evidence, as opposed to casually consuming it," Justice Ronald Nehring wrote for the majority.

Associate Chief Justice Michael Wilkins dissented, saying that detecting the odor of marijuana can at times justify police entry into a home without a warrant.

"In a case where illegal drugs are being burned out of sight but not out of smell, and where the quantity of drugs is unknown to the officers, a presumption that the drugs are being destroyed rather than merely consumed is not unreasonable," Wilkins wrote.

The decision stems from the case of Bernadette Duran, who was charged in 7th District Court in Price with three drug counts and one count of possession of a dangerous weapon.

A trial judge denied Duran's motion to throw out evidence but the Utah Court of Appeals reversed, saying the police officers were not justified in entering the residence. The case then went to the Supreme Court, which upheld the Court of Appeals decision.

According to court documents, police were called to a trailer in April 2003 by the brother and mother of the tenant.

The two reported that people inside the trailer, which was located on the mother's property, were smoking marijuana while the tenant was away. They also said the tenant kept guns there.

Officers later testified they could smell the faint but unmistakable odor of "marijuana leakin' out of the cracks of the trailer" and decided the occupants were smoking up the evidence.

They entered and allegedly found controlled substances, several firearms and three people, including Duran.

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nerphroll

Not to be a party pooper, but this decision does not make any sense. If the police have reason to think that the weed is being destroyed they can enter and search, but not if they think it's just being used casually? The latter is still illegal. Of course I wish it wasn't, but as a matter of legal procedure I think that as long as pot is illegal on the books, the odor of burning marijuana should be enough for the cops to enter and search. This decision just seems to go beyond the normal bounds of logic.

Buzzby

Not really. Our Constitution provides us protection against warrantless searches, except in the most extreme time-bound circumstances. There is no law (in most places) against smoking marijuana. The crime is possession. If an officer suspects that someone is possessing marijuana at some location he can seek a warrant.

Generally, people don't smoke up their entire stash at one sitting. If in some case they do, it is more important to preserve the Fourth Amendment than to make a possession bust. If the smell of pot smoke was a sufficient basis for a warrantless entry, the police could invade the home of anyone they suspect is a pot smoker.

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