Monday, May 11, 2009

The Smell Test

I read a police report the other day in which a search warrant was procured after an investigator allegedly “smelled” raw marijuana when his allergies flared up after he entered a house. Another time, in misdemeanor DUI case, the judge denied the motion to suppress I filed after a cop smelled marijuana while sitting at a stop light and my client cruised through the green light with the window rolled down. When he denied the motion, after I argued the impossibility of such “probable cause,” he commented that I must not have been around pot very much. (How was I supposed to answer that question? Maybe he was just mad at me for asking the cop if he drove, Ace Ventura-style, with his head out the window?)

But now the Eighth Circuit has opened the door (window?) to even better smelling techniques on the part of officers by approving a warrantless search of a home after officers (1) received an anonymous tip that meth was being manufactured in the home and (2) smelled an odor consistent with meth manufacturing:

In this case, the officers had probable cause to believe methamphetamine was being manufactured in Clarke’s home. The officers received an anonymous tip that methamphetamine manufacturing was occurring. Upon arrival, Officer Groat smelled an odor which, based on his training and extensive experience, he recognized as consistent with methamphetamine manufacturing . . . Exigent circumstances also existed. Because the officers had probable cause to believe methamphetamine was being produced in Clarke’s home, the officers reasonably concluded there was a potential threat to the safety of the officers, anybody inside the home, and anyone in the surrounding area.

Who needs a drug dog when the officer’s own allergies “alert” in the presence of pot? Who needs a warrant to search a home when you can simply claim to have smelled "chemicals" consistent with meth production?

Who needs the Fourth Amendment?

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