Justices: Officers that detect odor of raw marijuana may establish probable cause based on ‘training and experience’

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If a law enforcement officer believes they smell raw marijuana based on prior training and experience, they may establish probable cause for a search warrant based on that training and experience, the Indiana Supreme Court has ruled on an issue of first impression.

The Supreme Court affirmed the decision by the Greene Superior Court on Thursday in Jesse R. Bunnell v. State of Indiana, 21S-CR-139, overturning a reversal by the Indiana Court of Appeals.

Jesse Bunnell lived in a rental home with Amber Richardson and her two children. In April 2018, police responded to the home for a welfare check after receiving a report that Bunnell had battered Richardson.

When a deputy arrived, he received no response when knocking on the home’s two ground-level doors. The deputy then went up a set of exterior stairs to another door, where he noticed a security camera with wires passing through the door jam and the smell of raw marijuana emanating from the door.

The deputy asked an assisting officer if he also smelled marijuana, which he did.

After contacting Richardson and confirming she and the children were safe at a domestic violence shelter, the deputy applied for a search warrant to further investigate the marijuana odor. The judge granted the search warrant for the house only, and a subsequent search of the premises revealed nine pounds of raw marijuana, multiple marijuana plants under grow lights, smoking pipes, a scale and other drug paraphernalia.

The state thus charged Bunnell with dealing in marijuana, possession of marijuana and maintaining a common nuisance, all Level 6 felonies, and one count of Class C misdemeanor possession of paraphernalia.

Bunnell moved to suppress the seized items, arguing the search violated the Fourth and 14th  Amendments to the United States Constitution and Article 1, Section 11 of the Indiana Constitution because the affidavit failed to specify the deputies’ “training and experience” in detecting a specific smell.

After a hearing, the trial court denied Bunnell’s motion to suppress. On Bunnell’s interlocutory appeal, the Court of Appeals reversed, holding that the search warrant affidavit failed to adequately detail the deputies’ relevant training or experience in detecting the odor of raw marijuana. The state petitioned for transfer, which the Supreme Court granted.

In the high court’s opinion, written by Indiana Chief Justice Loretta Rush, the justices found the search warrant was appropriate.

“Because the scent of raw marijuana is so distinctive, and because marijuana is one of the most ubiquitous drugs in today’s society, we hold that a trained officer seeking a search warrant on this basis need not further detail their qualifications to recognize this odor beyond their basic ‘training and experience,’” Rush wrote.

The high court pointed to Johnson v. United States, 333 U.S. 10 (1948), where the U.S. Supreme Court found that the “presence of odors” can establish probable cause for a search warrant if conditions are met.

In addition, the court found that a warrant-issuing judicial officer can reasonably infer a trained law enforcement officer is qualified to recognize the odor of raw marijuana, citing Indiana Code §§ 5-2-1-1, -9.

“While it is better practice to provide additional detail, the absence of such detail does not defeat probable cause under these narrow circumstances,” Rush wrote. “… (W)e find that officers — like Deputies (David) Elmore and (Christopher) Anderson here — who assert their training and experience as the basis of their ability to detect the scent of raw marijuana can present a substantial basis for probable cause. This satisfies the requirement that warrant-issuing judges and magistrates consider the reasonable inferences drawn from the totality of the evidence.”

Rush noted that the high court’s holding stands in tension with some prior Court of Appeals decisions that have suggested or held that an officer’s general statement to this effect may not suffice for a probable cause determination. Such cases included Alexander-Woods v. State, 163 N.E.3d 902, 910 (Ind. Ct. App. 2021), trans. denied; Bean v. State, 142 N.E.3d 456, 463–64 (Ind. Ct. App. 2020), trans. denied; and State v. Hawkins, 766 N.E.2d 749, 751–52 (Ind. Ct. App. 2002), trans. denied.

“To the extent these cases conflict with today’s holding, we disapprove them,” Rush wrote.

Defendants who wish to challenge probable cause remain free to inquire as to officers’ training and experience, though the overarching inquiry remains whether the warrant-issuing judge has a substantial basis to determine that probable cause existed, the high court held.

Justices Steven David and Geoffrey Slaughter both concurred, Justice Christopher Goff concurred in result and Justice Mark Massa concurred with a separate opinion.

“The Court of Appeals decision we vacated might have been summarized thusly: The boilerplate magic words in a search warrant application in these circumstances require more than just ‘based on my training and experience,’” Massa opined. “Some further elaboration was required describing said training and experience.

“Our holding today makes clear those six magic words suffice in cases involving the odor of raw marijuana. In support, we cite a neighboring federal court decision that found, ‘implicit in an officer’s statement that he smelled marijuana is that he knows what marijuana smells like by virtue of his law enforcement experience,’” Massa continued, citing United States v. Conklin, 154 F. Supp. 3d 732, 738 (S.D. Ill. 2016).

“In my judgment, that ought to be enough; it is ‘implicit.’ The next case may well entail an application where an officer says, ‘I smelled raw marijuana,’ but omits the six magic words. Suppression, then, would seem to follow from today’s holding, despite the affiant’s implicit knowledge that many would recognize. Detectives and magistrates should heed the lesson.”

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