"Plain smell" does not justify search of person in car

Francis E. Mesienheimer, of Martindell, Swearer & Shaffer, won in State v. Altum, No. 96,971 (Kan. App. Oct. 26, 2007)(unpublished), successfully defending Judge Becker's suppression order in a Reno County drug prosecution. One big issue was whether the smell of marijuana coming from a car justified a search of one of the occupants of the car:

Deputy Graber performed an initial justified Terry frisk of Altum. That search was unproductive. At the time of this initial search, the following factors were known to Graber: (1) The smell of marijuana emanating from the car in which Altum was a passenger; and (2) the smell of marijuana emanating from Altum's person. The only additional information that could have given rise to a probable cause search of Altum after the unproductive Terry frisk was that Stephenson, the other back-seat passenger, had been in possession of marijuana.

The fact that Graber noticed the smell of marijuana coming from a car with two back-seat passengers, and one passenger had been found in possession of marijuana, does not automatically establish that both were involved in criminal activity.

In summary, we do not believe that Kansas has yet adopted a “plain smell” exception for warrantless searches of persons based on a trained law enforcement officer's detection of the odor of marijuana.

Good discussion of Kansas case law on this subject if you have the same or a related issue.

[Update: the state did not file a PR and the mandate issued on November 29, 2007.]