Monday, September 27, 2004

Zuniga v State: The Knowing Nose

The Court of Appeals reversed Zuniga's conviction here for visiting a common nuisance, because the State failed to prove that the location visited had been used for illegal drug use before. That's not the interesting part though.

The court rejected her argument that the evidence that she knew about illegal drugs being used at the site had been insufficient:

In the instant case, testimonial evidence revealed that Zuniga stepped inside the residence’s garage upon arrival. Detective Aaron K. Dietz (Detective Dietz) testified that prior to the raid nobody was outside the garage area or driveway. Detective Dietz also added that upon entering the home, he smelled burnt marijuana with the strongest smell coming from the garage where smoking devices, rolling papers, a rolling machine, residue of marijuana and blunt cigars were found. Thus, considering only the evidence most favorable to the judgment, together with all reasonable and logical inferences to be drawn therefrom, we can infer beyond a reasonable doubt that based upon the strong smell of burnt marijuana Zuniga knew that the residence was used for the unlawful use of a controlled substance. See Alspach, 755 N.E.2d at 210; Bass, 512 N.E.2d 460.
(Emphasis added). So now we are all presumed,beyond a reasonable doubt, to know what "burnt marijuana" smells like? And how exactly did we acquire that knowledge beyond a reasonable doubt? And how does this "inference" square with the requirement from other cases that a law enforcement officer know the odor of burnt marijuana from her "training and experience" in order for the odor to supply probable cause? See this case:
A sampling of cases from other jurisdictions holding that the distinctive odor of burnt marijuana detected by a trained and experienced police officer is sufficient to constitute probable cause to search a motor vehicle includes the following: United States v. Peltier, 217 F.3d 608, 610 (8th Cir. 2000); Brunson v. State, supra, 327 Ark. 567; Mendez [*752] v. People, 986 P.2d 275, 280 (Colo. 1999); [**6] People v. Stout, 106 Ill. 2d 77, 87 Ill. Dec. 521, 477 N.E.2d 498 (1985); State v. Moore, 90 Ohio St. 3d 47, 734 N.E.2d 804, 806 (Ohio 2000) (many cases cited in fn. 1, 2, p.807); State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999) cert. denied 526 U.S. 1140, 143 L. Ed. 2d 1025, 119 S. Ct. 1799.

Considering the stipulated facts and the numerous decisions from other jurisdictions, we have no hesitation in deciding that when a trained and experienced police officer detects the strong and distinctive odor of burnt marijuana coming from a vehicle, the officer has probable cause to search the vehicle. That is true under both the Fourth Amendment of our federal constitution and under Article 1, Section 11 of the Indiana Constitution.
Hawkins v. State, 766 N.E.2d 749, 751-752 (Ind. Ct. App., 2002). No need for the "trained and experienced police officer" anymore.

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