Justices to decide marijuana grow probable cause case

The Indiana Supreme Court has agreed to decide whether police officers had probable cause to obtain a search warrant for a home they believed to be the location of an indoor marijuana growing operation after granting transfer to the case last week.

In the case of Brandon McGrath v. State of Indiana, 49S04-1710-CR-653, a divided panel of the Indiana Court of Appeals in July overturned Brandon McGrath’s conviction of dealing in and possession of marijuana, both as Class D felonies. McGrath was convicted after Indianapolis Metropolitan Police Department officers, acting on an anonymous tip, obtained two search warrants that led to the discovery of an elaborate marijuana grow operation inside his home.

The officers applied for the warrants based on a series of circumstances, such as the fact that McGrath’s home had both a central air conditioning system and window AC units. Based on their training, the officers said such circumstances generally indicate the presence of an active marijuana grow.

Though the officers’ training proved accurate here, and though they took “extreme care … to adhere to proper procedures in conducting this investigation,” Judge James Kirsch, writing for the majority of the appellate panel, determined there was insufficient evidence to support the issuance of a warrant.

“What was lacking was corroboration of the distinctive smell of marijuana emanating from the house, which would have provided corroboration of the tip that criminal activity likely was occurring at that location,” Kirsch wrote in the July opinion. “In short, a detective’s determination that there is a probability that evidence of criminal activity will be found at a particular place based upon his or her training and experience without evidence that corroborates a tip … does not establish probable cause for the issuance of a search warrant.”

Judge Cale Bradford dissented, writing that he believed the good-faith exception would apply here. The justices will now decide whether the officers had probable cause to obtain the warrant, though oral arguments have not yet been scheduled for the case.

The Supreme Court denied transfer to 16 other cases last week. The full list of transfer actions can be read here.