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Supreme Court release for December 7, 2018

07 Dec 2018 3:50 PM | Tiffany Fisher (Administrator)

The Kansas Supreme Court released the following published decisions today:

Case No. 113,888: State of Kansas v. Lawrence C. Hubbard

Archived oral argument video

A divided Supreme Court ruled that the smell of raw marijuana coming from a residence, when combined with other circumstances, can supply probable cause to support a residential search by police. This ruling is the first time the court addressed the issue and settled a conflict between Court of Appeals decisions.

The Supreme Court affirmed Hubbard's misdemeanor convictions of possession of marijuana and possession of drug paraphernalia in Douglas County District Court Police officers testified they smelled the strong odor of raw marijuana while standing at Hubbard's apartment door questioning him about another matter. They directed the occupants to leave the apartment while they applied for a search warrant. The officers conducted a security sweep to preserve evidence, and then waited for a judge to issue the warrant. It was during that search they found 25.07 grams of raw marijuana in a Tupperware container inside a safe, a small amount of marijuana on a partially burnt cigarillo in the living room, and several bongs, which were clean and had no marijuana residue.

Hubbard challenged the officers' ability to smell raw marijuana at his doorway. The district court disagreed, noting the officers' experience in detecting the odor. Hubbard also argued the officers needed to be qualified as expert witnesses to give their opinions about what they smelled.

In affirming the conviction, the Supreme Court split 4-3. The majority noted Kansas has recognized for several years that the odor of marijuana detected by an officer trained and experienced in identifying the smell provided probable cause to search a vehicle. In applying those same principles to a residential search, the majority noted an officer's testimony about smelling the odor of an illegal substance was simply part of the circumstances that a court considers when deciding if there is probable cause to believe a crime is being committed or that the residence contains evidence. In rejecting the argument that officers needed to be qualified as experts, the majority opinion, written by Justice Dan Biles, observed, "We are not dealing with sommeliers trying to identify a white wine as a Loire Valley Chenin Blanc." 

The dissent, written by Justice Carol Beier, and joined by Justices Eric Rosen and Lee Johnson, agreed with Hubbard that the officers needed to be qualified as expert witnesses.

Case No. 116,398: State of Kansas v. Tyler Regelman

Archived oral argument video

The Supreme Court reversed a Geary County District Court order suppressing drug-related evidence seized during a residential search based on a police officer's testimony about smelling raw marijuana. The court held the testimony about the odor provided probable cause under the case's facts to justify a search warrant. This decision is a companion case to another decision released today in which court made a similar ruling.

Regelman was charged with possession of marijuana with intent to distribute within 1,000 feet of a school zone, possession of drug paraphernalia, and possession of marijuana. An officer testified he noticed a raw marijuana smell while standing at the front door to Regelman's house. The district court suppressed the drug-related evidence by ruling the smell of marijuana did not provide probable cause for a search. A Court of Appeals panel agreed, but the Supreme Court reversed.

The case will return to Geary County District Court for further proceedings. Justices Lee Johnson and Eric Rosen dissented.  

Appeal No. 112,959: State of Kansas v. David E. Parker Jr.

Archived oral argument video

The Supreme Court agreed Wichita police did not illegally seize a car while waiting for a drug dog search after the driver was pulled over and arrested for a traffic violation. The court concluded the State properly used cocaine found within the vehicle to convict Parker with possession of the drug.

In addition to cocaine possession, a Sedgwick County jury convicted Parker of fleeing or attempting to elude a police officer, driving with a suspended license, failure to signal while turning, and driving with no head lamps. The Court of Appeals rejected Parker's challenges to the admission of the drug evidence, the sufficiency of evidence for eluding the police officer, and the use of Parker's prior convictions to enhance his sentence. A majority of the Supreme Court agreed with those rulings. Justice Lee Johnson dissented on the vehicle seizure issue and would have reversed the drug conviction.

The Court of Appeals remanded the case to Sedgwick County District Court to consider whether the prosecutor used peremptory strikes to remove the only potential juror of Parker's race from the jury pool. That ruling was not before the Supreme Court. 
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