Wake up and smell the contraband: why courts that do not find probable cause based on odor alone are wrong.

• Author: Sprow, Michael A.

It was around midnight on March 9, 1994, when Officer Walendzik of the Wyoming, Michigan police department drove through the parking lot of a known high-crime area as part of his routine patrol.(2) Officer Walendzik observed a car with five male occupants in the parking lot.(3) After noticing that the car was not running and that the occupants were not attempting to exit the car, Officer Walendzik approached and spoke to the individual in the driver's seat.(4)

When the driver rolled down his window, Officer Walendzik immediately detected the odor of burned marijuana.(5) Although Officer Walendzik was familiar with the smell based on his prior experience arresting marijuana offenders,(6) he called a fellow officer to the scene to confirm his detection of the odor before searching the car.(7) The second officer confirmed the odor of marijuana immediately upon approaching the passenger's side of the vehicle.(8) He recognized the odor from his previous contact with marijuana during two years of police experience.(9)

After the second officer detected the odor, the officers ordered the occupants out of the car and conducted a pat-down search, which uncovered a handgun in the possession of a passenger.(10) A subsequent search of the vehicle uncovered three additional handguns, three facemasks, pagers, and pieces of a cigar that appeared to contain marijuana.(11)

At the preliminary hearing, the defense attorney moved to suppress all of the evidence obtained from the vehicle, arguing that the search was illegal because it was not supported by probable cause.(12) Despite the immediate and unequivocal detection of the odor of marijuana by both police officers, the magistrate agreed with defense counsel and dismissed the case.(13) The prosecutor appealed to the Supreme Court of Michigan,(14) which affirmed in People v. Taylor,(15) holding that the odor of marijuana by itself is insufficient to sustain a finding of probable cause.(16) As a result, five young males found by police to have handguns, facemasks, and illegal contraband in their possession were back on the street, unpunished.

The anomalous holding in Taylor is not an isolated result. Although most jurisdictions would disagree with Taylor,(17) a significant number of jurisdictions have either refused to accept a plain smell corollary to the plain view doctrine,(18) or have given ambiguous or contradictory rulings on the issue.(19) In jurisdictions that have failed to adopt plain smell, officers who have sufficient training or experience to immediately identify certain odors are placed in a conundrum. They can either 1) let someone go who they are fairly certain is in possession of contraband, or 2) strive to uncover an additional piece of evidence to create sufficient probable cause to justify a search. Each of these options is unsatisfactory. The former is unsatisfactory because it may allow a large number of criminals to escape arrest, even though they are within the grasp of a police officer whose level of suspicion exceeds that which is constitutionally required to conduct a search.(20) The latter is unsatisfactory because there will be many situations in which the officer is unable to perceive any incriminating factors beyond the odor that he has already detected. Moreover, this latter option encourages officers to fabricate additional evidence in order to consummate the arrest of a subject who they are confident possesses contraband.(21) Judicial recognition of the officer's ability to identify a distinctive odor based on his training or experience eliminates the illogical situation where the officer must choose between two such unsatisfactory options.

This Note provides an overview of the principal arguments advocating and condemning the adoption of a plain smell corollary to the plain view doctrine.(22) This Note concludes that those jurisdictions that have yet to definitively resolve the issue should adopt the plain smell doctrine, and those that have rejected plain smell should reconsider their position.

The first section of this Note briefly discusses the history of the plain smell doctrine and how commentators and courts, particularly the Supreme Court, have treated it. The second section focuses on the manner in which state courts have treated plain smell. This section notes that the contradictory application of the plain smell doctrine in some jurisdictions leaves law enforcement and attorneys with little certainty as to whether searches based solely on scent are valid. The section then turns to the divergence among state court interpretations of the Fourth Amendment and discusses why such a disparity is problematic. The third section presents the arguments against the adoption of the plain smell doctrine and explains why those arguments are unconvincing. The section concludes by analyzing the arguments in favor of plain smell. The fourth section examines some of the policy and logistical issues that accompany the adoption of plain smell. Finally, this Note concludes that the arguments in favor of a plain smell corollary to plain view greatly outweigh the arguments against plain smell. As such, this Note encourages those jurisdictions in which the issue is unsettled to affirmatively adopt the plain smell doctrine.

THE DEVELOPMENT OF PLAIN SMELL

Although the Supreme Court has accepted the validity of the plain view doctrine since 1971,(23) and has recently adopted a plain touch corollary to plain view,(24) the Court has never explicitly extended plain view to include the sense of smell. In Taylor v. United States,(25) decided during the Prohibition Era, the Court held that the detection by officers of the odor of whiskey did not authorize a warrantless search.(26) Taylor, however, involved the search of part of the defendant's home,(27) and therefore should not be interpreted as a blanket condemnation of plain smell.(28)

Sixteen years later, in Johnson v. United States,(29) the Court again invalidated a warrantless search based on the officers' detection of a distinctive odor.(30) Like Taylor, however, the place searched in Johnson was part of a building.(31) Significantly, the Court indicated that Taylor did not stand for the proposition that evidence of odors could never constitute sufficient probable cause for a search.(32) The Court also stated that:

[i]f the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.(33) Thus, the Court expressly recognized the validity of considering distinctive odors in the determination of probable cause for obtaining a search warrant.(34) Nevertheless, the Court was openly wary of any search conducted without a warrant.(35) At best, therefore, Johnson was inconclusive on the issue of plain smell.

The most recent Supreme Court case to address plain smell, United States v. Johns,(36) has been cited by some courts and commentators as an endorsement of the plain smell doctrine.(37) Unfortunately for plain smell proponents, however, such claims are untenable. Justice O'Connor expressly stated in her majority opinion that the plain smell issue was not before the Court.(38) Moreover, in acknowledging that the officers had probable cause to search without a warrant, the Court mentioned a series of factors leading to the finding of probable cause,(39) and indicated that it was a combination of those surrounding circumstances that suggested that the trucks were involved in smuggling activity.(40) The finding of probable cause in Johns, therefore, is more aptly characterized as a totality of the circumstances analysis than as an implementation of the plain smell doctrine. As such, Johns does not represent Supreme Court approval of plain smell.

Despite the Supreme Court's failure to adopt plain smell, the lower federal courts embrace it overwhelmingly.(41) The Fourth Circuit has taken a particularly strong stance on the issue of plain smell.(42) In United States v. Sifuentes,(43) for example, the Fourth Circuit suggested that the detection of the odor of marijuana places it into "plain view."(44) In United States v. Haley,(45) that court again noted that an odor emanating from a container brings the contents of that container "into plain view,"(46) and further stated that "odor alone is sufficient cause to search" such containers.(47) The Haley Court expressly asserted that an officer's detection of the odor of marijuana originating from a vehicle creates sufficient probable cause for a warrantless search.(48) Thus, despite a lack of guidance from the Supreme Court on plain smell, the Fourth Circuit, like the majority of federal courts, has unambiguously given its imprimatur to the plain smell doctrine.

The groundwork for the Supreme Court to decisively adopt plain smell was sufficiently laid over a decade ago, yet the Court has continually failed to do so.(49) In fact, the last time the plain smell issue was involved in a Supreme Court opinion, the Court made it clear that it was not settling the question.(50) Thus, despite the virtually unanimous acceptance of plain smell among the federal circuits, state courts are free to decide the issue on their own. As a result, two problems have arisen. First, the interpretation of the Fourth Amendment by some states' highest courts directly conflicts with the federal courts' interpretation of the Fourth Amendment. Second, in states in which the highest court has yet to address the issue, the lower courts are left with no mandatory authority from which to draw guidance. The result of the second problem is an ad hoc determination of probable cause each time a plain smell case arises, allowing for lack of uniformity within the same state. Supreme Court adoption of plain smell...