I saw a cop car sitting in front of my house. now I am scard cuz...

[daihashi]

Daihasi, I'm sorry to have to post this but this is incorrect and not the first time I have seen you post in the legal forum about smell gives them the right to search without a warrant so I want to help clear this up. First of all, you need probable cause and an exception to the search requirement. Now I know people want to talk about cops being dishonest, cutting corners or flat out lying but let's talk in what should be done and done properly.

Probable cause helps to establish that a crime has been committed and that suspect x is the one that probably committed the crime. To conduct a warrantless search at this point you have to have an exception to the warrant requirement. Some exceptions include granting the police permission to search, plain sight, terry pat down, imminent danger, possible loss of evidence. These aren't all of them. The loss of evidence is still tricky as many judges would rather the police secure the scene and then get the warrant (such as remove everyone from a house, stand guard, and then get the warrant) if evidence could be lost or destroyed.

Plain smell does not equal warrantless search by itself.

This was established by Taylor v. US (1932) and then pretty much upheld by Johnson v US (1948). If you find the summary for Taylor v US I think one or more of the judges writes about how plain smell isn't as convincing as plain sight because it's hard to trap a smell and bring it into evidence while something seen is easier to show as evidence and more compelling. I haven't read the whole thing in a while so I might be off. Then in Johnson v US if you read it you will see there is more evidence against Johnson than just smell and again the Supreme Court upholds smell alone is not the basis for a warrantless search.

The Supreme Court has also established that burnt marijuana smell suggests possession and personal use while raw marijuana smell suggests possible distribution or growing.

They can follow that smell around to try to find the origin but it can only take them so far. If those plants are in plain sight, it really doesn't matter about the smell.

Local News | State Supreme Court narrows probable-cause grounds in pot case | Seattle Times Newspaper

In a unanimous ruling, the court determined the smell of pot isn't enough probable cause to warrant the arrest and search of everyone inside a car. While smell alone may be reason for a vehicle search,the court determined, it doesn't warrant handcuffing passengers without other supporting evidence.

This could easily be applied to a grow if the smell was distinctly coming from his house and the odor was strong. Especially if he smelled the odor and found the plants in his backyard the police officers probable cause would have been justified and likely to found credible in the Supreme Court.

I never claim to be a lawyer or for people to take my advice as actual legal advice. I gave my opinion and while it could be fought and overturned, I doubt anyone here has the money it would take to get that done and to get a Jury that would support it especially after this Supreme Court ruling July 17th 2008 where they determined that it would give probable cause to search but not to arrest/detain.

shrug... I'm no lawyer... besides it's likely to vary state by state anyway

Say what you will but I've been to court enough times to see that smell is enough probable cause for the judges locally and I'm fairly certain here no one has the money to take this to the supreme court.

While it certainly sucks that police officers use this as probable cause, most courts I've been in allow this. What's right and what actually happens are unfortunatley two different things.

[FakeBoobsRule]

This could easily be applied to a grow if the smell was distinctly coming from his house and the odor was strong. Especially if he smelled the odor and found the plants in his backyard the police officers probable cause would have been justified and likely to found credible in the Supreme Court.

I never claim to be a lawyer or for people to take my advice as actual legal advice. I gave my opinion and while it could be fought and overturned, I doubt anyone here has the money it would take to get that done and to get a Jury that would support it especially after this Supreme Court ruling July 17th 2008 where they determined that it would give probable cause to search but not to arrest/detain.

Even though newspapers are written on a 4th grade level they can be of some use.

Ok, how you made a jump from this one case involving a car to coming up with how this case can be applied directly to a house escapes me. Cars and house fall under a different set of rules. When The Constitution was written, the British were walking into colonists' homes at will. The Constitution was written with the belief that a home is one's castle and the most sacred of places. Cars on the other hand aren't. Because cars are mobile, you have fewer rights than a house. Carroll v US helps to establish that a car itself is an exception to the warrant requirement because of its mobility. You can't always apply a ruling from a car to a house and vice versa. The fact that a car is involved is an exception to the warrant requirement in most cases.

Next look at the timeline of events.

1) Cop see what he believes is illegal window tint, initiates stop.
2) Cop smells marijuana and arrests both the driver and passenger.
3) Cop searches both of them after incident to arrest.
4) Cop finds pipe and marijuana on the passenger.
5) Cop now searches car because he has found marijuana on passenger.
6) They all go to court.

The cop didn't smell the marijuana, search the car, then arrest them. He arrested them first based on the smell alone which is what the whole case rests on. Did he have probable cause for a warrantless arrest, not a warrantless search and seizure.

I found the whole opinion and summary insted of the written in stone words of some news reporter who may or may not have legal training.

Under their state law, once you are arrested you are subject to search. Arrest would be an exception to the warrant requirement in Washington. The defense is arguing that the arrest was illegal making the search illegal. The Washington State Supreme Court agreed and reversed the lower court ruling.

You can read it all right in the following link here instead of a reporter's own take because this part:

In a unanimous ruling, the court determined the smell of pot isn't enough probable cause to warrant the arrest and search of everyone inside a car. While smell alone may be reason for a vehicle search, the court determined, it doesn't warrant handcuffing passengers without other supporting evidence.

Washington Courts

In that opinion, none of the judges ever state smell alone may be reason for a vehicle search. That's what the reporter said. To me, for the reporter to say smell alone when dealing with a car arrest is almost like an oxymoron because it isn't smell alone, it's smell and a mobile crime scene and falls under Carroll v US with the car is an exception to the warrant requirement. How much power the car exception gives a cop varies from state to state by the way.

You don't have to take a case all the way to the Supreme Court to use Taylor v Us or Johnson v US in a defense. It's called citing cases to support your argument something judges take highly into consideration when ruling.

While you might have sat in court and heard what was going on, that doesn't mean that people were being searched based on smell alone.

You can hang your hat on this case that was ruled upon by a state Supreme Court. I'll stick with Johnson v US and Taylor v US.

If the cop was smart, he would have had a better chance getting the search in by arresting the driver for driving while impaired, impounded the car, and searched it incident to arrest, which is also an exception to the warrant requirement.

[stinkyattic]

There is case law kicking around somewhere establishing that smell, in and of itself, is NOT probable cause to search a vehicle. I do not have the case name or even whether it was state or fed, but smell is going to be low on the list of concerns- PLAIN SIGHT is the big one to worry about.

As for smell, cops aside, thieves have noses too...

[jsn9333]

There is case law kicking around somewhere establishing that smell, in and of itself, is NOT probable cause to search a vehicle. I do not have the case name or even whether it was state or fed, but smell is going to be low on the list of concerns- PLAIN SIGHT is the big one to worry about.

As for smell, cops aside, thieves have noses too...

I am not a lawyer (yet) nor any sort of criminal attorney, but it is my understanding that smell alone is grounds to search a vehicle. I wouldn't be surprised if the laws vary State by State, but on the Federal Level (if you appealed to the Supreme Court) I believe smell alone is grounds to search a car. I know of many people in various states that have had their car searched because of smell alone, and they did not win on appeal. Now maybe some case in X state did win on appeal... but unless I lived in that state I wouldn't take my chances. Just keep the smell out of the car (and off you if you are in the car) by all means possible.

That being said, smell is not grounds, by itself, to search a house since that has more historical protections under the 4th amendment. That is my understanding at least. But if you let your house reek and they smell it you can be damn sure they're going to start trying to gather additional evidence.

[daihashi]

That being said, smell is not grounds, by itself, to search a house since that has more historical protections under the 4th amendment. That is my understanding at least. But if you let your house reek and they smell it you can be damn sure they're going to start trying to gather additional evidence.

It is my understanding that an officer may enter premises if your property remains unlocked. (at least this is how it was explained to me by my lawyer.)

Meaning if your front door is unlocked the officer may come into your dwelling or if you have a fenced in back yard and the outside door to the back yard is unlocked then he may search the premises.

Smell will not allow an officer to arrest or detain you, but I believe it still gives him reason to investigate further, and if he actually finds something then there is little chance of it being thrown out.

As I've said before, I've spent quite a bit of time in the criminal courts (I'm not proud of this fact) and regardless of whether it's right or wrong, smell typically is justifiable by the judges are reasonable probable cause. You can appeal your case or take it to a higher court, both which costs money most people don't have.

I don't stand by what I say as legal advice. I say it regurgitating a combination of what I've seen in the courts first hand and what my lawyer has expressed to me personally. He's gotten me off on anything I've been arrested for (more so in my early 20's.. and luckily I don't need his services these days) so I personally take what he tells me to heart as I respect his insight and advice.

With that said I think if the cops were going to come for hydrocannabis they would've gotten him by now. It's probably safe to say the coast is clear, but that's up to the OP to decide.

[rebgirl420]

There is case law kicking around somewhere establishing that smell, in and of itself, is NOT probable cause to search a vehicle. I do not have the case name or even whether it was state or fed, but smell is going to be low on the list of concerns- PLAIN SIGHT is the big one to worry about.

As for smell, cops aside, thieves have noses too...

I posted this a while back:

http://boards.cannabis.com/current-e...b-c-court.html

[daihashi]

I posted this a while back:

http://boards.cannabis.com/current-e...b-c-court.html

Go canada

[missconspiracy]

You would be surprised what the USFG can do under the PATRIOT act and new terror laws. GoddessHerb IS correct about 'sneak-and-peek' searches, which were either XOed or passed by congress in the USA PATRIOT Act. That's just true.

Moreover, if property is locked, police may not enter without a search warrant. But, with a warrant, they may cut locks, etc. UNLESS, however, they claim some bullshit about terrorism.

The BUSH (yes, Bush did this!) administration's crackdown on imaginary terrorism has definitely added SIGNIFICANT powers to the state and taken most rights to privacy and 'security in one's person and papers' and thrown them the fuck away.

[CaptainDankNuggets]

How many times has this happened, and im sure that you have to much traffic in and out of your house not to smart, especially when your growing.

[hydrocannabis]

the only ppl that ever go in and out of this house is me, an old ladie, a weener dog and 2 cats. and thats it.

and most of my neighbor R old and R cool ppl.
and the buds R gitting bigger now and still no smell. not up close or from the street. for now.


well thats it for now and try to stay safe as I will try to do.:stoned: