Protective sweep only applies if incident to lawful arrest

Matt Edge won in State v. Cabral, No. 96,379 (Kan. App. June 15, 2007) (unpublished), reversing a Reno County drug conviction. The COA agreed with Mr. Cabral that, although officers had consent to enter the apartment, the consent was limited and did not allow a general search of the apartment. The COA disagreed with the state and the district court that the officer was entitled to conduct a protective sweep, which the KSC has held must be incident to arrest. The state also argued that the smell of marijuana provided justification for the broad search. The COA agreed that smell of marijuana provided probable cause of a crime, but followed prior KSC cases holding that the smell of marijuna, by itself, does not provide exigent circumstances justifying a warrantless search:

[The officer] expressed no concern that the occupants of the apartment would destroy evidence if he had to leave and obtain a search warrant. To the contrary, he testified that his search of the apartment was not for the marijuana he smelled, stating: "I was looking for people." This was the State's position in summation: "The officer is clearly looking for people and not evidence." Without facts to establish exigent circumstances, the State fails to justify its warrantless search of the apartment.

Another win for the Fourth Amendment!

[Update: the state did not file a PR and the mandate issued on July 19, 2007].