Quote Originally Posted by daihashi
if they smelled what they thought to be marijuana in the air they would not need a search warrant either if it was strong enough to determine it's origin.
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.
FakeBoobsRule Reviewed by FakeBoobsRule on . I saw a cop car sitting in front of my house. now I am scard cuz... then I saw they cop car drive off. now I am scard cuz because I have a few plants in my backyard. am I screwed. do they know I have plants? and how ling does it take for them to get a sirch warnt? I an realy realy realy freaking out bad now. should U cut down my plants. let me know what to do soon. thanks. Rating: 5