Rick Kittel won in State v. Ibarra, No. 89,011 (Kan. Dec. 8, 2006), reversing some Pratt County manufacture and other drug convictions. The KSC framed the issues as follows:
Does the strong odor of ether emanating from the interior of a vehicle without a legitimate explanation constitute probable cause to search and, if so, does the late hour and potential mobility of the vehicle constitute exigent circumstances?
After considering the requirements under the emergency doctrine, the KSC, 6-1, concluded that
[t]he strong odor of ether emanating from a house or a vehicle is as consistent with lawful activity as it is with criminal activity. We agree with the California Court of Appeals that the smell of ether alone is justification for further investigation but not for a search.
Although indicating that it would be improper to allow the state to seek validation of the search on grounds not raised and litigated at the suppression hearing, the KSC rebutted the dissent on a couple of points, holding that
application of the 'fellow officer rule' to the circumstances of this case displaces testing of the reliability of the information known by [the detective]; more specifically there are no findings by the trial court regarding the reliability of the informants. A determination of probable cause should not be based simply upon a determination that there were informants; reliability of the information is a factor.Finally, the KSC made it clear that the COA had improperly blended the concepts of probable cause with the automobile exception:
both the [COA] and the dissent have attempted to validate the search based upon the automobile exception to the Fourth Amendment to the United States Constitution. The Ibarra [COA] simply erased the distinction between probable cause and exigent circumstances, stating that "exigent circumstances existed which provided officers with probable cause . . . ." The exception to the requirement of a lawfully issued search warrant that is at issue in this case is probable cause to search plus exigent circumstances The [COA] failed to properly apply the exception. The State must show probable cause exists whether the search is of an automobile or a residence, and if it does, then a search warrant is not required to search an automobile. The controlling factor in the present case is not whether exigent circumstances existed but rather whether probable cause existed to search Ibarra's automobile. It did not; the search was not constitutionally permissible, and the motion to suppress should have been granted.This is a great case with a lot of thorough Fourth Amendment analysis. This case will be cited many many times in the future.
Here is the coverage of this case on FourthAmendment.com.
[Update: this case was voted 2006 ADO case of the year.]