In 1st impression case, COA says officers must explain training to get warrants based on drug odors

The Indiana Court of Appeals has reversed the denial of a motion to suppress drug-related evidence found during a search of a Greene County man’s home. The appellate court ruled on an issue of first impression that probable cause for a search warrant cannot be based only on an officer’s detection of the smell of marijuana without additional information about the officer’s training.

While responding to a domestic violence call at Jesse Bunnell’s home, two Greene County Sheriff’s Department deputies observed the smell of raw marijuana emitting from one of the doors of the residence. After securing a search warrant for the home on that basis, the officers found nine pounds of marijuana, marijuana plants and other drug paraphernalia. With a second search warrant, the officers found additional marijuana in a recreational vehicle on the property.

Thus, Bunnell was charged with Level 6 felony dealing in marijuana, Level 6 felony possession of marijuana, Level 6 felony maintaining a common nuisance and Class C misdemeanor possession of paraphernalia. The Greene Superior Court denied Bunnell’s motion to suppress evidence recovered from the home and RV, in which he alleged that the search and seizure violated both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution.

In an interlocutory appeal, Bunnell argued that “the only evidence that supports” probable cause was the deputies’ detection of the odor of raw marijuana, which was based on their “training and experience.” However, he claimed that because there is no information about either deputies’ relevant training or experience in detecting the odor of raw marijuana, the affidavit was insufficient to establish probable cause.

As such, Bunnell argued the evidence seized pursuant to both the initial search warrant and the subsequently issued warrant must be suppressed. The appellate panel agreed under what it called “unique facts and circumstances.”

“To explain why, we address a narrow issue of first impression: whether law enforcement’s detection of the odor of marijuana based on unspecified ‘training and experience’ by itself provides a warrant-issuing judge with a substantial basis for concluding that probable cause exists to search a home,” Judge Paul Mathias wrote for the appellate court.

The court noted that the smell of marijuana emanating from a residence, when detected by law enforcement that is qualified to identify and distinguish the odor, by itself can establish probable cause for issuance of a search warrant.

“But when the smell of marijuana is the only evidence constituting probable cause, the search-warrant affidavit — or information otherwise before the issuing judge — must include some information regarding the detecting officers’ relevant qualifications, experience, or training in identifying and distinguishing the odor,” Mathias wrote. “To conclude otherwise would sanction a categorical presumption that every law-enforcement official is adequately trained in detecting and distinguishing the smell of marijuana.”

Turning to the search warrant affidavit in Bunnell’s case, the appellate court concluded it did not demonstrate that the officers were qualified to identify and distinguish the odor of raw marijuana. Specifically, the panel noted the affidavit did not include any information regarding the deputies’ relevant qualifications, experience or training that demonstrated either deputy could identify or distinguish the smell of raw marijuana.

Nor did the affidavit include information about how long the deputies had been in law enforcement, their involvement in investigating marijuana offenses or in making marijuana-related arrests, the panel continued. Also, the affidavit contained no information about specialized training that either deputy had undergone in detecting the odor of raw marijuana.

“Because there was no probable cause to issue the warrant, the initial search of Bunnell’s home was illegal, and the exclusionary rule requires suppression of the evidence seized,” Mathias concluded. “Further, ‘it was by exploitation of that illegality’ that law enforcement secured a search warrant for Bunnell’s RV. As a result, that evidence must also be suppressed.”

Finding that the trial court erred in denying Bunnell’s motion to suppress, the appellate court reversed in the case of Jesse R. Bunnell v. State of Indiana, 20A-CR-981.