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Kansas Supreme Court: Pot Smell Justifies Police Search Without a Warrant

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Kansas Supreme Court: Pot Smell Justifies Police Search Without a Warrant

This ruling represents some giant steps backward for the state of Kansas — and the state of legalization.

Although marijuana seems to be gaining traction as one of America’s beloved recreational substances, it is important to recognize that there is still a significant level of backwards politics associated with this plant in many parts of the country. Small time pot offenders still get locked up in jail every day in the United States. And now in one state, courts have established the fact that law enforcement has the right to enter private property sans warrant if an officer claims to smell weed coming from the residence.

Just this week, the Kansas Supreme Court handed down a split decision that gives police the freedom to rely on their olfactory senses as a mean for establishing probable cause to conduct a search. The 4-3 ruling, which upholds the misdemeanor convictions of a man by the name of Lawrence Hubbard, allows cops to investigate vehicles and residences based exclusively on the smell of marijuana.

In 2013, officers with the Lawrence Police Department stood at the front door of Hubbard’s home and started sniffing around… literally. One of them claimed that they caught a whiff of the “strong odor of raw marijuana emanating from the apartment.” The officers then entered the home and conducted an initial security sweep, which they said was necessary to establish probable cause and prevent the suspect (or anybody else in the house) from destroying any evidence.

A search warrant secured after the fact led to the discovery of 25 grams of weed in a sealed Tupperware container in a closet on the opposite end of the residence. Only a small amount in a cigarillo was found in the living room. It was clear that Hubbard wasn’t a dealer, just a recreational user.

Nevertheless, Hubbard was charged with possession of marijuana and possession of paraphernalia and he was convicted of these crimes.

In court, his attorney Jim Rumsey argued that the conviction should be overturned because it was unlikely that the officer could smell such a small amount of raw cannabis from that distance. “From 30 feet away we’re supposed to believe she can smell raw marijuana?” asked Rumsey, according to the Topeka Capital-Journal. “I’d suggest no reasonable person could do that.” He also complained that the initial security sweep was illegal and a clear violation of his client’s constitutional rights.

But the courts didn’t buy it.

In the end, the Supreme Court decided that it doesn’t take any special skills to detect the odor of marijuana and that the odor of marijuana was indicative of criminal behavior. “We are not dealing with sommeliers trying to identify a white wine as a Loire Valley Chenin Blanc,” Justice Dan Biles wrote the decision. The ruling upholds the 2016 decision made by the Kansas Court of Appeals.

The state’s highest court argued that Kansas cops are trained well enough to use their snouts to sniff out pot offenders, eliminating the process of obtaining a warrant before rummaging through the personal of space of the people. Essentially, now, all an officer has to do to justify militant tactics in the quest for illegal drugs is start his or her report with, “I smelled marijuana.”

Still, not all of the justices agreed with the decision. A dissenting opinion provided by Justice Carol Beier and signed by two others declared that the convictions should, in fact, be overturned. These judges said there are just too many unanswered questions concerning the evaluation of marijuana odors to justify the events surrounding these convictions.

“How much raw marijuana must be present in order for a human to be able to detect its odor? How close must the person be to the raw marijuana in order to detect its odor? Does it make a difference whether the raw marijuana is in a closed container or a closed container within a closed container? How long does the odor of raw marijuana linger?” Beier wrote, adding that the lower court was wrong when it determined that the search warrant was obtained on the up and up.

The case involving Hubbard should strike fear in every American, regardless of whether they use marijuana or not, because it is representative of the further deterioration of our constitutional rights in the so-called Land of the Free.

It’s a sign that no matter how much progress the country seems to have made concerning its cannabis laws, many Americans still reside in areas ensnared in the gradually weakening grip of marijuana prohibition.

TELL US, have you ever been searched or detained on marijuana-related charges in a way that infringed on your rights?

2 Comments

2 Comments

  1. Maxcatski

    January 1, 2019 at 9:01 am

    No one’s nose is valid grounds for a search. This has been disallowed by the courts in the past – and will be again. There is WAY too much potential for abuse.

    And NO ONE can smell pot thirty feet away in a sealed container. Get serious. Really.

    Luckily I live in Canada where pot is legal. When someone smells it here, they want some, too.

  2. Joe

    December 16, 2018 at 4:46 am

    The problem here is that plant substances such as mugwort used by acupuncturists and their patients for moxibustion are misidentified as cannabis by the majority of people/police. There have been many an acupuncturist here in Minneapolis that have had to demonstrate and explain to law enforcement this modality that the typical person mistakenly identifies as cannabis smoke. There are many plants that share the same terepene profile as cannabis when smelled or burnt. It will take a highly trained nose to discriminate between the very similar odors.

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