Salt Lake City, UT: The odor of burning marijuana emanating outside of a home does not grant law enforcement the authority to enter that residence without a warrant to search for contraband, the Utah Supreme Court recently ruled in a 4-1 decision.
The ruling affirms a 2005 Utah Court of Appeals decision determining that police improperly entered a private residence after reportedly smelling “marijuana leaking out of the cracks of the trailer.”
Writing for the majority, Justice Ronald Nehring opined that only a limited number of circumstances – such as the imminent destruction of evidence – create exigent circumstances to justify a warrantless search.
“We decline to pare back a fundamental constitutional guarantee where the commission of an offense – in this case, smoking marijuana – involves as its incidental but inevitable consequence the destruction of evidence,” the Court determined. “Presumably, even if some of the marijuana was destroyed through the process of smoking while law enforcement sought a warrant, some evidence of the drug use would linger in the form of residue, smoking paraphernalia, and some quantity of unsmoked marijuana.. … [Therefore,] the aroma of marijuana must be accompanied by some evidence that the suspects are disposing of the evidence, as opposed to casually consuming it, before law enforcement officials may be lawfully justified in claiming the benefit of the exigent circumstances exception.”
A 2004 paper published in the journal Law and Human Behavior reported that marijuana’s odor is seldom strong enough to be detected by law enforcement outside of a home and/or the trunk of an automobile.
For more information, please contact Keith Stroup, NORML Legal Counsel, at (202) 483-5500. Full text of the decision, Utah v. Duran, is available online at: http://www.utcourts.gov/opinions/supopin/Duran030907.pdf.