Georgia Court of Appeals, Criminal Case (3/30/2015, 6/2/2015)
The presence of an odor of marijuana emanating from a specified location may be the sole basis for the issuance of a search warrant if the affidavit for the warrant contains sufficient information for a magistrate to determine that the officer who detected the odor is qualified to recognize the odor as marijuana.
A divided whole Court of Appeals reversed the grant of Peter J. Kazmierczak’s motion to suppress, holding that officers’ detection of the odor of drugs was sufficient to provide a legal basis for the issuance of a search warrant. While conducting a “knock and talk,” officers smelled a strong odor of raw marijuana emanating from Kazmierczak’s residence and sought a search warrant. The affidavit for the search warrant indicated that the probable cause for the warrant was based solely on the narcotics officers’ detection of the strong odor of raw marijuana inside the residence. Following the issuance of the search warrant, officers found evidence that led to charges against Kazmierczak for possession of marijuana with intent to distribute and manufacturing marijuana. The trial court granted Kazmierczak’s motion to suppress in reliance on precedent that supported Kazmierczak’s position that the odor of marijuana alone could not serve as the basis for the search warrant of the residence and that the warrant was thus issued without the requisite showing of probable cause.
In light of decisions from federal and other state jurisdictions, the Court found that, if the affidavit for a search warrant contains sufficient information for a magistrate to determine that the officer who detected the odor of marijuana emanating from a specified location is qualified to recognize the odor, the presence of such an odor may be the sole basis for the issuance of a search warrant. To the extent that the holdings in Patman v. State, Shivers v. State, State v. Fossett, State v. Charles, Boldin v. State and Martinez-Vargas v. State, could be interpreted as support for the premise that the odor of raw marijuana emanating from a particular location cannot be the sole basis for the issuance of a search warrant for that location, the Court disapproved such interpretations. To the extent that State v. Pando, holds that the presence of odors can never be the sole basis for the issuance of a search warrant, the Court overruled that holding. The Court remanded the case to the trial court. Doyle, P.J., concurred specially and in the judgment, to state that State v. Pando should be overruled, but it was not necessary to disapprove the other cases the majority cited. Phipps, C.J., joined by Ellington, P.J., dissented, to argue that the majority improperly disapproved and/or overruled Georgia case law, and that, when the circumstances underlying this case are viewed under standards recently reiterated by the Supreme Court of Georgia and under Georgia’s long-established and sound rule that the odor of marijuana is a factor to be considered amongst the totality of the circumstances when determining whether probable cause existed, the trial court correctly granted the suppression motion.
As published by The Daily Report, 190 Pryor St. Atlanta, GA 30303 on 6/2/15.