Can A Concerted Effort To ‘Sniff’ For Probable Cause Go Too Far?

Posted on by Steven W. Thayer, PS

On behalf of Steven W. Thayer, P.S. Criminal Defense Attorney on Thursday, April 25, 2019.

To support probable cause, police often seek to rely on evidence, or suspicions of potential criminal activity, based upon police observations made while members of law enforcement are legally in a place where the observations are made. However, the reasonableness of the specific actions of police may be called into question, or challenged in many circumstances.

In State v. Boethin, two detectives claimed that they had some kind of suspicion that a marijuana growing operation may have existed at a rural home. They apparently knew that their level of suspicion did not reach the level required to support probable cause. So, they decided to visit the residence, without a warrant, in the hopes that they could get a whiff of marijuana to bolster their hunch concerning the alleged marijuana cultivation operation.

Is It Reasonable For Anyone To Sniff Door Jambs On Private Property?

The residence itself was fairly secluded from neighbors. The home and garage were located more than a football field from the public street. The detectives parked on the driveway. The doors to the home and garage were all closed. One of the detectives went to the front door and knocked. The other detective walked over to the nearby garage without permission of any resident. He intended to smell the air, hoping to sniff the scent of marijuana.

The detective had to put his nose a mere two inches from the closed garage, before he claimed that he could smell pot through the crack between the door and the jamb. He called out to the other detective, who was still at the front door of the home waiting for a response to his knock on the door. The second detective strolled over to the garage, sniffed a couple of inches away from the closed door, and claimed to smell pot as well.

The two left the residence, apparently without speaking to anyone. They obtained a signed search warrant, based in large part on the smell of marijuana they each claimed came from inside the closed garage. Police seized 22 growing plants and 11 pounds of cut marijuana during a search of the garage, according to court records. The resident of the home was charged with unlawfully manufacturing marijuana.

Criminal defense lawyer Steven W. Thayer sought to suppress the marijuana evidence from trial, arguing that police acted unreasonably when they approached the closed garage door and sniffed the crack between the door and the jamb. The trial court disagreed and the man was convicted in the trial court.

Constitutional Rights Involve Complex Analysis

On appeal, Mr. Thayer argued that the trial court erred by admitting the evidence of marijuana. In a general sense, police may make observations and, based on training and experience, draw conclusions that may support probable cause of a possible crime. However, they not only must be legally in a place to make the observations, but also, they must act reasonably in trying to collect evidence to support probable cause

The appellate panel reviewed the facts and agreed that the detectives deviated substantially from what a “reasonably respectful citizen” would have done on the private property of another. The Fourth Amendment protections against unreasonable search and seizure require that police act reasonably. The home, and the area near the home (often called the “curtilage) carry strong constitutional protections.

In this case, the appellate judges found that entering private property for the sole purpose of sniffing around in the hopes of smelling something was unreasonable. Moreover, when knocks at the door did not get a response, police walked over to the garage (about 20 feet away) and started their “sniff” searches. The appellate panel found that a normal, reasonable person would not walk onto private property and sniff around the windows and doors. Accordingly, the appellate court reversed the trial judge and sent the case back for dismissal.

As this case highlights, how police obtain probable cause should be analyzed. Even when a search warrant has been obtained, a full legal review from a criminal defense lawyer may uncover flaws or weaknesses in the government’s case.

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