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What’s that smell?

Chad West April 21, 2014

If you answered “Marijuana”, you’re probably a police officer.  The majority of Texas possession of marijuana charges stem from a search justified by an officer’s nose, and if you believe their police reports, the state of Texas is populated with officers who are one part bloodhound and one part Dick Tracy.

But when that olfactory investigation begins at a client’s home, is the resulting search legally enforceable? The State of Texas has traditionally protected the rights of citizens in their homes, whether those rights involve self-defense, protection from creditors, or illegal police searches. But what exactly defines an illegal police search?  The Texas Criminal Appeals Court recently delved into the latter issue in Turrubiate v. State, 396 S.W.3d 147 (Tex.Crim.App. 2013). InTurrubiate, the defendant was arrested after a warrantless search and arrest in his home when law enforcement detected the strong odor of marijuana and entered under the auspices of protecting a child in the home. 

A warrantless search may be made where exigent circumstances exist to justify the search, and where those circumstances were the true motivating factor that law enforcement relied upon when conducting the search. These circumstances generally involve a time constraint such that law enforcement is not capable of obtaining a warrant in time to prevent a dangerous or illegal result. That might mean a child is endangered, a weapon is present, or evidence could be easily destroyed. In Turribiate, the circumstances may have supported the warrantless search, but they were not the true motivating factor that law enforcement relied upon. Had a child been present that required protection, and had the police expressed concern for that child upon beginning the search, the Appeals Court may have affirmed the lower court's decision. As it happened, the police had little concern for anything other than locating the marijuana and placing the defendant under arrest.

So what happens when law enforcement approaches your home and smells the strong odor of marijuana? Assuming they have a legitimate reason for being on your property (in Turrubiate, their reason, a Child Services visit, was legal), proper procedure requires them to apply for a warrant, stating the correct address and expected contraband, and obtain a signature from a judge. If that procedure is followed, and police serve the warrant legally, it will be difficult for the defendant to argue against admission of the evidence obtained. Commonly, however, law enforcement jumps the gun and asks permission to enter the home without yet acquiring a warrant.

The holding in Turrubiate establishes that the mere odor of marijuana, even when combined with probable cause, is not sufficient to justify a warrantless search. However, it is likely enough evidence to seek a warrant and conduct a legal search on that basis. Make no mistake, police are trained to investigate based on their observations, whether they involve smells, sights, or intuition developed from years of experience. To this end, courts are loathe to toss convictions based on reliable police work, but willing to step in when a defendant's constitutional rights are in danger of violation. 

Returning to the child safety justification - there are those that argue child safety is not at issue in possession of marijuana cases, since there is not adequate research to suggest that children are at risk due to marijuana use. However, courts and law enforcement generally assert that children are always at risk when illegal activities are taking place, and in the great state of Texas, marijuana possession and use is still illegal. Turrubiate would have turned out differently had law enforcement focused on the safety of the child.

Note that the presence of dangerous weapons in a home under these facts may be enough to justify a warrantless search, since the imminent danger to law enforcement qualifies as an exigent circumstance sufficient to pass consitutional muster. Combining illegal drugs with weapons or children will almost always end badly for a defendant... and it took the defendant inTurrubiate a trip to the Appeals Court to avoid a conviction. 

One way or another, if you've suffered a warrantless search at the hands of law enforcement, contact a licensed attorney at Chad West, PLLC to protect your rights and set the record straight. 

By Brent Burpee

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