LAWRENCE — A divided Kansas Supreme Court affirmed Lawrence Hubbard's misdemeanor convictions in a case demonstrating police officers relying exclusively on olfactory skills to detect raw marijuana can supply probable cause to support search of a residence.
The decision by the high court extended to a private residence the accepted principle in Kansas that a trained and experienced officer's detection of the aroma of marijuana could justify the legal search of a vehicle. The ruling also resolved conflicting Kansas Court of Appeals decisions.
Supreme Court justices, on a 4-3 vote, rejected arguments put forth by Hubbard's attorney, including questions about whether Lawrence Police Officer Kimberly Nicholson and one of her peers had to be an expert in pot odor to testify about justification for search of the apartment. Hubbard also challenged whether Nicholson was capable of detecting the "strong odor of raw marijuana emanating from the apartment" while standing outside the building's front door.
Justice Dan Biles, who wrote the majority opinion released Friday sustaining the Court of Appeals' decision in 2016 upholding the convictions, said officers didn't have to perform a sophisticated sensory task to proceed with reasonable action intended to prevent possible destruction of evidence.
"We are not dealing with sommeliers trying to identify a white wine as a Loire Valley Chenin Blanc," he wrote in the decision.
Hubbard was found guilty in Douglas County District Court of possession of marijuana and possession of drug paraphernalia, which led to a term of probation.
A detailed search of the house after securing a warrant didn't reveal a pile of pot on a dining room table or stacked in a secret room. The only significant amount of unsmoked marijuana was 25 grams stored in a closed Tupperware container locked inside a safe located in Hubbard's bedroom closet. A small amount of weed was detected on a partially burnt cigarillo in the living room.
The closet holding the safe was an estimated 30 feet from where Nicholson said she first inhaled evidence of unsmoked marijuana, said Jim Rumsey, the Lawrence attorney representing Hubbard.
"From 30 feet away we're supposed to believe she can smell raw marijuana?" Rumsey said. "I'd suggest no reasonable person could do that."
Kate Butler, an assistant district attorney in Douglas County who successfully argued the state's case before the Supreme Court, said probable cause was properly established by officers reporting distinct odor of unburnt marijuana.
The security sweep by Nicholson and other officers prior to obtaining a search warrant was appropriate to empty the apartment of anyone capable of destroying possible evidence of a crime, she said.
"What we do have is two officers very familiar with the smell of marijuana testify using words such as 'overwhelming, potent and very strong,' " Butler said.
Rumsey said some law enforcement officers would make reference to raw marijuana in an attempt to make a case bigger because unsmoked pot suggested a person had the illegal substance for sale rather than for recreational use. He also said drug evidence from the apartment should have been suppressed, because the initial security sweep was illegal and invalidated the subsequent search warrant.
The dissent authored by Justice Carol Beier and signed by Justices Eric Rosen and Lee Johnson said Hubbard's convictions should be reversed and his sentence vacated.
She said the district court judge failed in the gatekeeping function to demonstrate lawfulness of the search warrant and sort through whether police officers should have been qualified as expert witnesses.
A thoughtful hearing on Hubbard's suppression request would delve into questions about the ability of people to evaluate raw marijuana odors, Beier said.
"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?"