Bunnell v. State (Indiana 2020) 2020 Ind. App. LEXIS 538

Foundation for Expert Testimony

LE responded to a request for a well-being check on a possible DV victim. LE knocked on the door of the house and on the RV parked outside without success. However, in the process, LE smelled raw marijuana coming from the house. Victim contacted LE to say she was safe at a shelter. LE then sought a search warrant for the house, citing as probable cause the fact that two LE officers smelled marijuana. Contraband was found inside, so a rollover warrant was issued on the RV, where additional evidence was found.

Subject filed a motion to suppress claiming that although two officers swore they smelled raw marijuana coming from the house, the affidavit for the search warrant for the house did not indicate how the officers knew the smell was marijuana (there was no information of specific training or experience that would let the magistrate know that the officers had the requisite experience to recognized the smell of marijuana, just a blanket statement of “based on training and experience). In Johnson v. United States (1948) 333 U.S. 10, the U.S. Supreme court held that two factors must be met for a court to conclude the presence of odors; 1) the issuing magistrate finds the affiant qualified to know the odor and 2) the odor is one sufficiently distinctive to identify a forbidden substance. Here the first factor was missing. There was no information in the affidavit that the officers who claimed to smell marijuana had any specific training and/or experience to determine that the smell was actually marijuana. Here, since the only thing supporting probable cause in the warrant was the smell of marijuana, the affidavit must include some information regarding the detecting officers’ relevant qualifications, experience, or training in identifying and distinguishing the odor. Since this warrant lacked that information, the search warrant should not have been issued.