Marijuana Odor Insufficient for Warrantless Search
http://www.sltrib.com/search/ci_5397956
Posted by CN Staff on March 09, 2007 at 11:45:52 PT
By Pamela Manson, The Salt Lake Tribune
Source: Salt Lake Tribune
http://www.sltrib.com
Utah -- 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.
Complete Title: Court: Marijuana Odor Insufficient for Warrantless Search
Burning pot smell does not justify police entry
03/10/07The odor of burning marijuana isn't enough...exception for
getting a...aroma of marijuana must be accompanied...detecting the odor of
marijuana can at times...unmistakable odor of "marijuana leakin' out...
open in new window | similar resultsBy Pamela Manson The Salt Lake Tribune
