The existence of probable cause to search a vehicle and probable cause to search a vehicle occupant based on an odor of marijuana emanating from a vehicle present separate legal issues. The North Carolina Court of Appeals on August 2, 2016, ruled in State v. Pigford that although an officer had probable cause to search a vehicle, he did not have probable cause to search a vehicle occupant based on the marijuana odor. However, another theory mentioned by the court may ultimately support the admission of the illegally-seized evidence at the retrial of the case. Continue reading
Tag Archives: probable cause
G.S. 15A-245 provides that information other than that contained in a search warrant affidavit may not be considered by the issuing official in determining whether probable cause exists to issue the warrant unless the information is either recorded or contemporaneously summarized in the record or on the face of the warrant by the issuing official. This is commonly known as the “four corners” rule because the issuing official and later a judge at a suppression hearing may only consider information within the four corners of the search warrant (with the limited exception mentioned above). The issue does not arise often in appellate court opinions. However, it was involved in the June 21, 2016, North Carolina Court Appeals case of State v. Brown, available here, and is the subject of this post. Continue reading →
Last week a three-judge panel of the North Carolina Court of Appeals in State v. Allman (5 Jan. 2016), ruled (2-1) that a search warrant to search a residence for drugs was not supported by probable cause because the affidavit failed to link the residence to drug activity that had occurred elsewhere. This post discusses some of the interesting issues in this case, including possible state supreme court review. Continue reading →
Here’s a question that comes up from time to time: May a search warrant issue for a residence in which an apparent suicide has taken place, in order to rule out the possibility of foul play? Generally, I don’t think so, for the reasons given below. Continue reading →
Whether there was probable cause to arrest the driver is a hotly litigated issue in cases involving impaired driving. Unfortunately, there aren’t all that many appellate opinions addressing the hard calls in this area. Instead, many resemble State v. Tappe, 139 N.C. App. 33, 38 (2000), which found probable cause based on “defendant’s vehicle crossing the center line, defendant’s glassy, watery eyes, and the strong odor of alcohol on defendant’s breath.” It is difficult to imagine a court ruling otherwise. A few years ago, the court of appeals decided a tougher issue in Steinkrause v. Tatum, 201 N.C. App. 289 (2009), aff’d, 364 N.C. 419 (2010) (per curiam), concluding that the “fact and severity” of the defendant’s one-car accident coupled with a law enforcement officer’s observation that she smelled of alcohol provided probable cause to believe she was driving while impaired. This past year, the court issued two significant published opinions on probable cause for impaired driving—State v. Overocker, __ N.C. App. __, 762 S.E.2d 921 (Sept. 16, 2014), and State v. Townsend, __ N.C. App. __, 762 S.E.2d 898 (Sept. 16, 2014),—as well as opinions in State v. Veal, __ N.C. App. __, 760 S.E.2d 43 (July 1, 2014), and State v. Wainwright, __ N.C. App. __, 770 S.E.2d 99 (2015), better defining the threshold for reasonable suspicion of DWI.
Jurisprudence over whether officers may testify about defendants’ horizontal gaze nystagmus (HGN) in impaired driving trials has failed to follow a smooth path. In fact, one could fairly note that more than the defendants’ eyes have jumped all over the place. First, our state supreme court said that testimony from a police officer regarding the results of an HGN test performed by the defendant was inadmissible without the evidence establishing that the HGN test was scientifically reliable. State v. Helms, 348 N.C. 578 (1998). The legislature responded by amending Rule 702 in a manner that, according to the court of appeals, “obviat[ed] the need for the state to prove that the HGN testing method is sufficiently reliable” and permitted law enforcement officers trained in administering the HGN test to testify about the defendant’s performance. State v. Smart, 195 N.C. App. 752 (2009). But forget admissibility for a moment. Does HGN evidence prove anything much anyway? A recent unpublished case from the court of appeals indicates that it does not. Continue reading →
From time to time, I am asked about the right of private citizens to initiate criminal charges by approaching a magistrate. The arrest warrant statute, G.S. 15A-304, requires only that a magistrate be “supplied with sufficient information, supported by oath or affirmation” to find probable cause. The statute doesn’t limit the source of that information to law enforcement officers. As most readers know, it is common in North Carolina for private citizens to seek the issuance of an arrest warrant or a summons.
I have long thought that this was a distinctive feature of North Carolina law, but it seems to be somewhat more common than I believed. Continue reading →
The court of appeals decided a case today concerning a fact pattern that arises frequently in drug cases.
State v. McKinney began when an officer received a “citizen complaint” about “heavy traffic in and out of” a particular apartment, with the visitors staying only a short time. The citizen stated that he or she had “witnessed individuals exchanging narcotics in the parking lot with the person who lived in the apartment.” The officer set up surveillance on the apartment, and promptly saw an individual arrive, enter the apartment, and leave six minutes later. Another officer followed the visitor and stopped him for a traffic violation. The visitor had a history of narcotics arrests, and his car contained $4,258 and a gallon-sized bag with just 7 grams of marijuana inside. His cell phone showed recent text messages that appeared to concern a drug transaction. For example, about half an hour before the visitor’s arrival at the apartment, he received a text message stating, “when you come out to get the money can you bring me a fat 25. I got the bread.”
The officer obtained a search warrant for the apartment based on the above information. He executed the warrant, finding drugs and guns. The defendant, the occupant of the apartment, was arrested and charged with several offenses. He moved to suppress, arguing that the warrant was not supported by probable cause, but his motion was denied. He pled guilty and appealed.
The court of appeals reversed, ruling that probable cause was absent. It focused on the lack of evidence concerning the inside of the apartment, noting that neither the officer nor the citizen “witnessed any narcotics in or about the apartment,” and stating that although the officer saw the visitor enter the apartment, there was “nothing in his affidavit which suggests that he saw [the visitor] carry marijuana or anything else inside.” The court cited State v. Crisp, 19 N.C. App. 456 (1973) (finding no probable cause where there was heavy traffic into and out of a residence at all hours and a traffic stop of a resident revealed drugs on his person and in his vehicle), and State v. Hunt, 150 N.C. App. 101 (2002) (finding no probable cause where an officer received complaints of suspicious traffic at a residence and verified that a large number of vehicles visited the residence briefly).
This strikes me as a fairly close case that another court might view differently. For example, a Texas appellate court found sufficient probable cause to search a residence based mostly on a stream of short visits to the residence plus nearby outdoor hand-to-hand transactions. Polanco v. State, 475 S.W.2d 763 (Tex. Ct. Cr. App. 1972). But in light of McKinney and its forbears, North Carolina officers should look for factors like an odor associated with controlled substances, a customer’s admission that he or she purchased drugs at the residence, or a controlled buy or other evidence from an informant.
The question. Many cases hold that the smell of marijuana provides probable cause to search a vehicle. See, e.g., State v. Greenwood, 301 N.C. 705, 708 (1981); State v. Smith, 192 N.C. App. 690 (2008) (“When an officer detects the odor of marijuana emanating from a vehicle, probable cause exists for a warrantless search of the vehicle for marijuana.”). I have been asked many times whether that principle extends to individuals. In other words, if an officer detects the odor of marijuana emanating from a person, may the officer search the person?
The answer. Generally, the answer under North Carolina law is yes. See State v. Yates, 162 N.C. App. 118 (2004) (smell of marijuana provided probable cause to search suspect, and potential destruction of evidence provided exigency supporting warrantless search); State v. Burch, 2006 WL 2671337 (N.C. Ct. App. Sept. 19, 2006) (unpublished) (officer who smelled odor of marijuana emanating from suspect had probable cause and exigent circumstances supporting a warrantless search). Cf. State v. Rivens, 198 N.C. App. 130 (2009) (officer “noticed a bulge in defendant’s shirt, the smell of marijuana on defendant, and the nervous twitch of defendant’s mouth,” and this “was sufficient to create a reasonable and articulable suspicion of criminal activity” and to support a frisk); In re S.W., 171 N.C. App. 335 (2005) (SRO working with school officials had “reasonable grounds” to search a juvenile when the officer smelled a strong odor of marijuana coming from the student).
Split of authority in other jurisdictions. As a matter of intellectual interest, it is worth noting that this issue has divided courts elsewhere. Plenty of cases reach results similar to those reached by our appellate courts. See, e.g., United States v. Humphries, 372 F.3d 653 (4th Cir. 2004) (“[I]f an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana.”); State v. Moore, 734 N.E.2d 804 (Ohio 2000) (probable cause and exigent circumstances existed to support a search of the defendant where an officer detected a strong odor of marijuana coming from the defendant and his vehicle). However, there are also cases in other jurisdictions that disagree. See State v. Smith, 2011 WL 4563077 (Kan. Ct. App. 2011) (unpublished) (noting that “the Kansas Supreme Court has found probable cause to search a vehicle based solely upon the odor of marijuana” but concluding that “[u]nder current Kansas law the odor of marijuana alone is not enough” to justify the search of a person); United States v. Smith, 694 F.Supp.2d 1242 (M.D. Ala. 2009) (stating that while “the smell of narcotics does constitute probable cause to search the vehicle” the prosecution presented no authority for the proposition “that the smell of marijuana constitutes probable cause to search the person”).
Variants on the question. There are interesting variants on this question. For example, does an odor of marijuana emanating from a group of people provide a justification for searching each of them? See A.T. v. State, 93 So.3d 1159 (Fla. Ct. App. 4th Dist. 2012) (discussing conflicting precedents on this issue). Does an odor of marijuana emanating from a person allow the search of a vehicle in which the person was a recent occupant? And, are there unusual circumstances under which an odor of marijuana emanating from a person doesn’t justify a search, such as when the person has just left a raucous party and exudes only a mild odor of marijuana that may be due to environmental marijuana smoke at the gathering? I’ll leave those for another post.
Yesterday, the Supreme Court decided Florida v. Harris, holding that when a trained and certified drug dog alerts on a vehicle, that normally provides probable cause to search the car, even if there are no records proving that the dog has previously performed well at detecting drugs in the field. I mentioned Harris in my Supreme Court preview, here, and in a long prior post about the reliability of drug-sniffing dogs, here, so I have been awaiting the opinion.
Facts. The case arose when a Florida K-9 officer executed a routine traffic stop on the defendant’s truck. The defendant appeared nervous and there was an open beer can in the vehicle, so the officer asked for consent to search. The defendant refused. The officer walked his drug dog around the vehicle and the dog alerted. The officer searched based on the alert; he found no drugs but did find 200 pseudoephedrine pills, 8,000 matches, and other ingredients for manufacturing methamphetamine. The defendant was arrested and charged based on possession of those ingredients. Later, while the defendant was out on bail, the officer stopped him again for a traffic violation, the dog alerted again, and the officer searched again, but found nothing of interest in the vehicle.
Motion to suppress. In court, the defendant moved to suppress the pseudoephedrine and other items found in the initial search. The state showed that the dog had completed a 120-hour police-run training course; that the dog had previously been certified by a private dog training and testing outfit, though this certification was not required by law; and that the officer and the dog undertook various refresher training from time to time, during which the dog performed well.
The defendant argued that while the dog may have been trained in drug detection, his certification had expired and his performance in the field was poor, as reflected in his two alerts on the defendant’s narcotics-free vehicle. Thus, the defendant maintained, the dog’s alerts did not provide probable cause to search. The officer admitted that he did not keep complete records of the dog’s field performance, but argued that the dog likely alerted to the defendant’s vehicle based on a residual odor of methamphetamine.
Lower court rulings. The trial court denied the motion and, after the defendant pled no contest and appealed, an intermediate appellate court affirmed. The Florida Supreme Court reversed, ruling that records reflecting how often the dog “alerted in the field without illegal contraband having been found” were necessary to determine whether the dog’s alert provided probable cause.
Supreme Court ruling. The United States Supreme Court granted certiorari and again reversed. The Court unanimously held that:
- Probable cause must be assessed using common sense and under the totality of the circumstances
- Requiring a checklist of particular evidence, such as a dog’s field performance records, is the inconsistent with a totality-of-the-circumstances approach
- Field performance data is imperfect because it may understate a dog’s false negatives (as the dog’s failure to alert usually will result no search being conducted and so no drugs will be found even if they are present) and may overstate a dog’s false positives (because, for example, a search based on an alert may fail to reveal drugs that are present but well hidden)
- Controlled testing of dogs is a “better measure” of their reliability, so if the state can show that a dog performs well at detecting drugs in a controlled setting, and a defendant fails to contest that showing, that is enough to show that the dog’s alert provides probable cause
- The defendant may contest such a showing by contesting the training and testing standards, by presenting fact or expert witnesses, or by contesting the particular alert (for example, by showing that the officer cued the dog to alert)
- In this case, the state’s evidence about the dog’s training and proficiency in finding drugs amply supported a finding of probable cause, and the defendant’s response was focused on only two alerts, which may have been explained by residual odors and were, in any event, hindsight
Further litigation? I suspect that the Court’s opinion will spark litigation about drug dogs, because it provides a framework for presenting and analyzing challenges to dog alerts. And the Court’s opinion leaves plenty of questions unanswered. For one thing, it refers to training or certification conducted by a “bona fide” organization without explaining how to know whether an organization is “bona fide.” How extensive must the organization’s testing be? How realistic? How much experience must the organization have? My understanding is that the field of drug dog training and testing isn’t regulated or standardized, so there may be great variability between programs.
Further reading. Perhaps along similar lines, professor Orin Kerr’s reaction to the opinion is that “the Court . . . said there is no particular test [for probable cause] and then created a particular test: Certification from a ‘bona fide’ organization . . . or ‘recent and successful’ completion of a training program creates a presumption of probable cause.” SCOTUSBlog’s summary of the case is here. The Washington Post covers it here.
The Court has not yet ruled on the other drug dog case it heard this Term, Florida v. Jardines, involving the use of a drug dog to sniff the front door of a residence. Stay tuned.