Odor of Marijuana; Curtilage
LE smelled fresh marijuana near a store front. LE searched for the source after a resident said he had smelled marijuana for the last 2-3 weeks. LE went down an alley following the smell and entered the property through a closed gate. Even though there were signs that indicated this was a residence, they opened an unlocked door and looked inside and saw evidence of a marijuana grow. LE got a search warrant after a person who appeared to be connected with the property refused consent. LE stated in the warrant affidavit that the property appeared to be abandoned. (Note: In Ohio, the smell of burnt marijuana does not justify the search of a car’s trunk, but the odor of raw marijuana provides different probable cause than burnt marijuana. Seems a little weird, but that’s the state of the law in Ohio right now.) Court held that the smell of marijuana was probable cause for a search warrant; however, they also held that the evidence that provided a nexus from the smell to the property was obtained in violation of curtilage.
