Quote Originally Posted by FakeBoobsRule
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.