WHOLE COURT
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
March 30, 2015
In the Court of Appeals of Georgia
A14A2046. THE STATE v. KAZMIERCZAK
RAY, Judge.
Peter Joseph Kazmierczak was charged by accusation with possession of
marijuana with intent to distribute and manufacturing marijuana (OCGA § 16-13-30
(j) (1)). Kazmierczak filed a motion to suppress the evidence, contending that the
search of his residence was illegal because it was conducted under a search warrant
that was issued solely based upon the strong odor of marijuana that police detected
when they visited the home. The trial court granted the motion to suppress in reliance
on precedent from this Court which supported the defendant’s position. The State
appeals, contending that our previous rulings were incorrect to hold that the detection
of odor of drugs alone could not provide a legal basis for the issuance of a search
warrant. Because we agree, we reverse and remand this case to the trial court.
Viewing the evidence in the light most favorable to uphold the trial court’s
findings and judgment, Henson v. State, 314 Ga. App. 152, 153 (723 SE2d 456)
(2012), the record shows that on February 6, 2013, law enforcement officers assigned
to the Marietta-Cobb-Smyrna Narcotics Unit went to Kazmierczak’s residence to
conduct a “knock and talk” after receiving a complaint that the residence was being
used to manufacture marijuana. While three of the officers remained out of sight, two
of the officers approached the house and knocked on the front door. An adult female
came to the door and told the two officers to go to the garage, and they complied.
When the officers entered the garage, they detected the odor of raw marijuana.
The female, later identified as Kazmierczak’s mother, greeted the officers in the
garage and asked them to wait there for a second while she secured a large dog. Upon
her return, the officers explained to her that they had received a complaint about
marijuana manufacturing taking place at the residence, and they asked about the
whereabouts of Kazmierczak. She told the officers that her son was not there and
asked them if she could help them with anything, stating that she was the owner of
the residence. The officers then asked her if they could come inside, and she
consented. Immediately upon entering the residence, the officers detected a stronger,
“overwhelming” odor of raw marijuana.
2
Based on this odor and without venturing further into the residence, the officers
decided to seek a search warrant. Two officers remained in the entryway of the
residence while they waited for the search warrant, and no search of the residence was
conducted prior to the issuance of the search warrant.1
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. The affidavit further indicated that the officers
detected the odor during the “knock and talk” investigation concerning possible drug
activity at the residence. The affidavit also set forth the training and experience of the
narcotics officers who were involved in the warrant application. Finding these facts
to be sufficient to establish probable cause to believe that marijuana could be found
on the premises, a magistrate judge issued a search warrant for Kazmierczak’s
residence.2
1
Although three other officers conducted a protective sweep of the residence
while they were waiting for the search warrant to be issued, those officers were not
involved in the warrant application process nor did they supply any information that
was used in the affidavit for the search warrant.
2
When the officers executed the search warrant, they found several hundred
grams of raw marijuana in bags or containers inside the residence, as well as two
marijuana plants in the garage. In one room of the house, officers also found a
ventilation hole cut in the ceiling and various pieces of equipment that could be used
to facilitate a marijuana growing operation.
3
Following a hearing on Kazmierczak’s motion to suppress, the trial court
concluded that the odor of marijuana alone could not serve as the basis for the search
warrant of the residence. As a result, the trial court found that the search warrant was
issued without the requisite showing of probable cause, and it suppressed the
evidence seized from the subsequent search. The State appeals from the trial court’s
ruling.
In State v. Palmer, 285 Ga. 75 (673 SE2d 237) (2009), our Supreme Court
described the standards applicable to the various levels of judicial scrutiny involved
in the warrant process. A magistrate determines if probable cause exists to issue a
warrant by making
a practical, common-sense decision whether, given all the circumstances
set forth in the affidavit before him, including the veracity and basis of
knowledge of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a
particular place. The trial court may then examine the issue as a first
level of review, guided by the Fourth Amendment’s strong preference
for searches conducted pursuant to a warrant, and the principle that
substantial deference must be accorded a magistrate’s decision to issue
a search warrant based on a finding of probable cause. . . . Our appellate
courts will review the search warrant to determine the existence of
probable cause using the totality of the circumstances analysis . . . to
determine if the magistrate had a substantial basis for concluding that
4
probable cause existed to issue the search warrant. . . . In reviewing the
trial court’s grant or denial of a motion to suppress, we apply the
well-established principles that the trial court’s findings as to disputed
facts will be upheld unless clearly erroneous and the trial court’s
application of the law to undisputed facts is subject to de novo review,
keeping in mind that a magistrate’s decision to issue a search warrant
based on a finding of probable cause is entitled to substantial deference
by a reviewing court.
(Citations and punctuation omitted.) Id. at 77-78.
The State asserts that the trial court erred in granting the motion to suppress by
ruling that the odor of marijuana alone cannot establish the requisite probable cause
for the issuance of a search warrant for a residence. We agree, but acknowledge that
the case law cited by the trial court supports its ruling. Obviously, then, over the years
we have issued opinions that misapplied the law in this area, or have been
misinterpreted, and must now correct our rulings.
In Clare v. State, 135 Ga. App. 281 (217 SE2d 638) (1975), we held that “[t]he
odor of marijuana smoke is not, in and of itself, sufficient to afford probable cause
for a warrantless search, but it may be considered and may be a part of a totality of
circumstances sufficient to validate [a warrantless search].” (Citation omitted.) Id. at
283 (2). We further acknowledged that, while odors alone cannot authorize a
5
warrantless search, such odors may form a proper basis for the issuance of a search
warrant. Id. Accord Johnson v. U. S., 333 U. S. 10, 13 (I) (68 SCt 367, 92 LEd 436)
(1948) (while the presence of odors is insufficient to authorize a warrantless search,
proper evidence of the presence of odors may be sufficient to justify the issuance of
a search warrant).
In State v. Folk, 238 Ga. App. 206 (521 SE2d 194) (1999), we considered the
issue of whether the odor of burning marijuana, standing alone, could constitute
sufficient probable cause to support a warrantless search of an automobile.
Recognizing that “the ‘automobile exception’ to the warrant requirement of the
Fourth Amendment applies to the search of a vehicle when probable cause exists to
believe it contains contraband[,]” as well as the fact that the presence of an odor may
be sufficient to establish probable cause, we held that a trained police officer’s
detection of the odor of burning marijuana emanating from the interior of a vehicle
constituted sufficient probable cause to support the warrantless search of a vehicle.
Id. at 208.
In Patman v. State, 244 Ga. App. 833 (537 SE2d 118) (2000), we then
considered the issue of whether the odor of marijuana, by itself, could establish
probable cause for a warrantless search of a person. Id. at 833. In our analysis of that
6
issue, we acknowledged that our holding in Folk, supra, authorized a warrantless
search of a vehicle based solely on the odor of marijuana, but we found that there is
“a lesser expectation of privacy in one’s automobile than in other contexts such as
one’s [person,] home[,] or office.” (Footnote omitted.) Id. at 835. Accordingly, we
held that the fact that the odor of marijuana establishes probable cause for the
warrantless search of a vehicle “does not mean that such an odor, standing alone, will
justify a [warrantless] search in other contexts[,]” such as a person’s residence.3 Id.
In so holding, we did not intend to imply that the odor of marijuana alone could not
establish probable cause for the issuance of a search warrant. Rather, the intent of our
holding in Patman was to point out that a search of one’s person, home, or office
based solely on the odor of marijuana could not be made without a warrant, absent
exigent circumstances which would justify a warrantless search. See Clare, supra at
283-284 (2). Our decision in Patman did not have any bearing on whether such an
odor, by itself, would be sufficient to justify the issuance of a search warrant.
The seeds that later grew into our misapplication of the law seem to have been
planted in Shivers v. State, 258 Ga. App. 253 (573 SE2d 494) (2002). In this case, we
3
In support of this finding, we cited Clare, supra, which held that odor of
marijuana, by itself, does not justify a warrantless search of a residence. Patman,
supra at 835, n. 16.
7
reversed the conviction of a defendant who was encountered by police outside his
home smelling of burnt marijuana, such fact which was used to obtain a warrant to
search his home. We acknowledged that the odor of marijuana is one factor that may
be considered in determining whether, under the circumstances, probable cause exists
to authorize the issuance of a search warrant. See State v. Fossett, 253 Ga. App. 791,
793 (1) (560 SE2d 351) (2002), citing Patman, supra; State v. Charles, 264 Ga. App.
874, 876 (2) (592 SE2d 518) (2003), citing Shivers, supra and Patman, supra.
However, we found that the smell of burnt marijuana on the defendant outside his
residence did not establish that it was smoked in or could be found inside the home.4
Eventually, this principle, that the presence of odors is merely one factor that should
be considered along with other factors in determining whether under the totality of
the circumstances probable cause exists to authorize the issuance of a search warrant,5
evolved into a pronouncement that there must be more than just the smell of the drugs
4
We found important that there was no averment that the odor of burnt
marijuana was emanating from anywhere other than the defendant’s person, that he
had recently exited the house, or that the marijuana was there or had recently been
burned at the house.
5
See Boldin v. State, 282 Ga. App. 492, 495 (2) (639 SE2d 522) (2006), citing
Charles, supra, Shivers, supra, and Fossett, supra; Martinez-Vargas v. State, 317 Ga.
App. 232, 237 (1) (730 SE2d 633) (2012), citing Pando, 284 Ga. App. 70 (643 SE2d
342) (2007), Boldin, supra, and Fossett, supra.
8
to justify the issuance of a search warrant. State v. Pando, 284 Ga. App. 70, 76-77 (2)
(a) (643 SE2d 342) (2007) citing Charles, supra and Patman, supra. Thus, our
misapplication of the law was complete.
This faulty premise has had the effect of establishing two different standards
for probable cause based on the presence of distinctive odors – one standard for a
warrantless search of a vehicle where the presence of such odors alone would be
sufficient probable cause, see Folk, supra, and another, more stringent standard for
the issuance of a search warrant where the presence of such odors alone would be
insufficient to establish probable cause, see Shivers, supra and its progeny. This
double standard violates the well established principle that a warrantless search of a
vehicle under the automobile exception must be based on the same degree of probable
cause that would otherwise be sufficient for the issuance of a search warrant. See
California v. Carney, 471 U. S. 386, 394 (III) (105 SCt 2066, 85 LE2d 406) (1985)
(The validity of a warrantless search under the automobile exception is determined
according to the same standard used by a magistrate in deciding to issue a search
warrant, “only the prior approval of the magistrate is waived; the search otherwise
must be such as the magistrate could authorize”) (punctuation and citation omitted.);
United States v. Ross, 456 U. S. 798, 809 (II) (102 SCt 2157, 72 LE2d 572) (1982)
9
(A warrantless search under the automobile exception based on probable cause “is not
unreasonable if based on facts that would justify the issuance of a warrant”) (footnote
omitted). Accord State v. Lejeune, 276 Ga. 179, 183 (2) (576 SE2d 888) (2003). As
the law in Georgia is clear that the odor of marijuana alone may constitute sufficient
probable cause to justify a warrantless search of a vehicle, Folk, supra, it follows that
such an odor alone would likewise be sufficient to justify the issuance of a search
warrant.
Notably, there are a number of decisions from federal and other state
jurisdictions holding that the odor of marijuana by itself can provide sufficient
probable cause for the issuance of a search warrant. See U. S. v. Friskey, 2014 WL
6698807, *1 (II) (6), *6 (III) (F) (E.D. Ky.), decided November 26, 2014 (strong odor
of marijuana inside residence was, by itself, a sufficient basis for issuance of search
warrant); United States v. Charles, 29 Fed. Appx. 892, 895-896 (II) (3rd Cir. 2002)
(odor of growing marijuana that was noticeable when the defendant opened the door
by itself provided probable cause for issuance of search warrant); United States v.
Elkins, 300 F.3d 638, 659 (VI) (6th Cir. 2002) (odor of marijuana could be sufficient
by itself to establish probable cause for a search of a vehicle, and “[t]he same may be
true when marijuana is smelled within a home”) (citations omitted.); State v. Hughes,
10
___ N. C. App. ___, *3-4 (III) (763 SE2d 928) (2014) (odor of marijuana emanating
from residence, standing alone, provided probable cause for the issuance of a search
warrant); State v. Ojeda, 147 So.3d 53, 65 (Fla. Dist. Ct. App., 2014) (finding the
smell of marijuana through an open door was sufficient to establish probable cause
for a search warrant); State v. Roman, 103 So.3d 922, 925-926 (Fla. Dist. Ct. App.,
2012) (same); State v. Pereira, 967 So.2d 312, 314 (Fla. Dist. Ct. App., 2007)
(anonymous tip coupled with officers’ detection of marijuana odor emanating from
residence provided sufficient probable cause to support the issuance of a search
warrant); State v. Watts, 801 N.W.2d 845, 854 (III) (B) (Iowa 2011) (odor of
marijuana emanating from apartment provided sufficient probable cause for the
issuance of a search warrant); State v. Cole, 906 P.2d 925, 941 (2) (128 Wash.2d 262)
(1995) (smell of growing marijuana, by itself, sufficient to establish probable cause
for search warrant); State v. Olson, 869 P.2d 110, 114-115 (I) (A) (73 Wash. Ct. App.
348) (1994) (odor of marijuana emanating from building and mobile home was, by
itself, sufficient to constitute probable cause for search warrant). Suffice it say, we
find these authorities persuasive.
Based on the foregoing cases, it appears to be widely accepted in numerous
jurisdictions that a trained police officer’s detection of the odor of raw marijuana can
11
be the sole basis for the issuance of a search warrant, and we see no legitimate reason
why Georgia should refrain from following this rationale. A magistrate would still be
required to consider “all the circumstances set forth in the affidavit[,]” see Palmer,
supra at 77, in determining whether probable cause exists to issue a search warrant
based on the presence of such an odor. Specifically, the magistrate could consider
whether the affidavit establishes that the officer was qualified to recognize the odor
based on his or her training and experience, whether the officer was able to determine
the particular location where the odor was originating from, and whether the officer
detected the odor from a place where he or she was legally entitled to be.
Accordingly, we see no reason to adhere to the premise that an odor of marijuana is
insufficient to justify the issuance of a search warrant. Indeed, the presence of odors
may be “evidence of the most persuasive character[,]” Johnson, supra at 13 (I), and
it would be reasonable for a trained police officer to infer from his detection of the
distinctive odor of raw marijuana emanating from a particular place that marijuana
will be found in that place. See McClain v. State, 267 Ga. 378, 388 (11) (477 SE2d
814) (1996) (“An officer’s inference that items sought will be at the place to be
searched requires no more than ‘a fair presumption’ to be reasonable”) (citation
omitted).
12
For the above reasons, we hold that if the affidavit for the 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. See Johnson, supra at 13 (I); Clare, supra. To the extent
that our holdings in Patman v. State, 244 Ga. App. 833 (537 SE2d 118) (2000),
Shivers v. State, 258 Ga. App. 253 (573 SE2d 494) (2002), State v. Fossett, 253 Ga.
App. 791 (560 SE2d 351) (2002), State v. Charles, 264 Ga. App. 874 (592 SE2d 518)
(2003), Boldin v. State, 282 Ga. App. 492 (639 SE2d 522) (2006), and Martinez-
Vargas v. State, 317 Ga. App. 232 (730 SE2d 633) (2012), 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,
such interpretations are hereby disapproved. To the extent that, State v. Pando, 284
Ga. App. 70 (643 SE2d 342) (2007), holds that the presence of odors can never be the
sole basis for the issuance of a search warrant, it is overruled.
Judgment reversed and case remanded. Andrews, P. J., Barnes, P. J., Miller,
Dillard, McFadden, Boggs, Branch, McMillian, JJ., concur. Doyle, P. J., Concurs
specially and in the judgment. Phipps, C. J., and Ellington, P. J., dissent.
13
A14A2046. THE STATE v. KAZMIERCZAK.
DOYLE, Presiding Judge.
I concur specially and in the judgment. I agree with the majority that this case
should be reversed because the affidavit for the search warrant contained sufficient
information for the issuance of a search warrant based upon “a strong[],
overwhelming odor of raw marijuana” smelled by the officers upon entering the
residence. I also agree with the majority that State v. Pando1 should be overruled.
Nevertheless, I write specially because I do not agree that it is necessary to
disapprove the other cases cited by the majority.
1
284 Ga. App. 70, 76-77 (2) (a) (643 SE2d 342) (2007).
A14A2046. THE STATE v. KAZMIERCZAK.
PHIPPS, Chief Judge.
I believe that the majority has improperly disapproved and/or overruled
Georgia case law. I further believe 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 ruled on the suppression motion. For
these, and other reasons set forth below, I dissent.
In State v. Palmer,1 the Supreme Court of Georgia reiterated the standards
applicable to various levels of judicial scrutiny involved in the warrant process:
The magistrate’s task in determining if probable cause exists to issue a
search warrant is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him,
including the veracity and basis of knowledge of persons supplying
1
285 Ga. 75 (673 SE2d 237) (2009).
hearsay information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place.2
“The trial court may then examine the issue as a first level of review”; and the
“appellate courts will review the search warrant to determine the existence of
probable cause using the totality of the circumstances analysis. . . .”3
Contrary to the majority’s stated basis for disapproving or overruling Shivers
v. State,4 State v. Fossett,5 Patman v. State,6 and State v. Charles,7 these cases do not
hold, nor are they fairly “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.” Rather, in accordance with the
standards reiterated in Palmer, these cases were decided under Georgia’s long-
established and sound rule that the odor of marijuana may be considered in
2
Id. at 77-78 (citations omitted, emphasis supplied).
3
Id. at 78 (citations omitted).
4
258 Ga. App. 253 (573 SE2d 494) (2002).
5
253 Ga. App. 791 (560 SE2d 351) (2002).
6
244 Ga. App. 833 (537 SE2d 118) (2000).
7
264 Ga. App. 874 (592 SE2d 518) (2003).
2
determining whether, under the totality of the circumstances, probable cause existed
to authorize the issuance of a search warrant.8
Moreover, each of these cases is distinguishable from the instant case. In
Shivers, as the majority acknowledges,9 we explicitly pointed out that there was no
evidence that the odor of marijuana had been emanating from the particular place
8
Id. at 876 (2) (“[T]he odor or marijuana is one factor that may be considered
in determining whether, under the totality of the circumstances, probable cause exists
to authorize the issuance of a search warrant.”) (citations and punctuation omitted);
Shivers, supra at 257 (“The odor of marijuana is one factor that may be considered in
determining whether, under the totality of the circumstances, probable cause exists
to authorize the issuance of a search warrant.”) (footnote omitted); Patman, supra at
835 (“The odor of marijuana is one factor that may be considered in determining
whether, under the totality of the circumstances, an officer had probable cause to
institute a search.”) (footnote omitted); Fossett, supra at 793 (1) (“The odor of
marijuana is one factor that may be considered in determining whether, under the
totality of the circumstances, an officer had probable cause to institute a search.”)
(citation and punctuation omitted).
9
Supra at n. 4.
3
sought to be searched.10 Thus, Shivers was correctly decided11 – as the majority
recognizes, a requisite component for a finding of probable cause is a showing of “the
odor of marijuana emanating from a specified location.”12 There is no basis to
disapprove or overrule Shivers, as that case is firmly planted in binding precedent
from this state’s High Court.13
Nor is there any basis to disapprove or overrule Charles, Fossett, or Patman.
Each case was correctly decided given its underlying facts, and each case is
distinguishable from the instant one.14
10
Shivers, supra at 256-257 (citing testimony that police officers “stopped by”
the defendant’s house when “[the defendant] was out at his house and [police
officers] pulled up talking to him”; explaining that “[t]he odor of burnt marijuana on
[the defendant’s] person . . . failed to establish probable cause that marijuana had
been smoked or burned or would be found within Shivers’s house or its curtilage.
There was no averment that the odor of burnt marijuana was emanating from
anywhere other than [the defendant’s] person, that [the defendant] had recently exited
his house, or that marijuana was then or had recently been burned anywhere at his
residence.”) (footnote omitted).
11
See Palmer, supra at 77.
12
Supra at __ (emphasis supplied).
13
See Palmer, supra (requiring “a fair probability that contraband or evidence
of a crime will be found in a particular place”) (citations omitted; emphasis
supplied); Shivers, supra at 254 (same).
14
Charles, supra at 876-877 (2) (concerning police officers’ detection of the
odor of marijuana smoke; reiterating that “the smell of marijuana smoke merely
4
Contrary to the majority’s stated basis for disapproving or overruling Martinez-
Vargas v. State15 and Boldin v. State,16 these cases do not hold, nor are they fairly
“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.” Moreover, these cases are distinguishable. Unlike the instant case, both
Martinez-Vargas and Boldin presented for a probable-cause determination the
suggests that marijuana was present in the past”; and noting that the evidence did not
indicate that the odor was strong or that the odor suggested to the officers that
marijuana was being consumed when they arrived; noting that there was no evidence
that the officers detected marijuana smoke on either defendant; or that either
defendant appeared to be under the influence of marijuana); Fossett, supra (holding
that the totality of the circumstances – the officer’s detection of the strong odor of
burning marijuana when he entered the defendant’s residence and the fact that the
officer was familiar with the residents and knew from his own personal experience
that they had recently possessed marijuana and drug trade implements – supported the
magistrate’s finding of probable cause for issuance of a warrant to search the
residence); Patman, supra (explaining that the “[police officer] smelled marijuana on
[defendant], which gave rise to reasonable suspicion that he had recently smoked
marijuana. [Police officer] then patted [defendant] and felt what he believed to be
packages of marijuana in [defendant’s] pocket. When he asked [defendant] what was
in the pocket, [defendant’s] request to ‘let [him] slide’ suggested that he had
something incriminating in his pocket. Taken together, the circumstances established
probable cause to search [defendant].”).
15
317 Ga. App. 232 (730 SE2d 633) (2012).
16
282 Ga. App. 492 (639 SE2d 522) (2006).
5
presence of an odor, together with other evidence;17 and both cases correctly applied
the law to their underlying facts.18
Contrary to the majority’s stated basis for disapproving or overruling State v.
Pando,19 that case contains no such broad, per se holding that “the presence of odors
can never be the sole basis for the issuance of a search warrant.”20 That case made no
17
Martinez-Vargas, supra at 238 (1) (explaining that the fact that the officer
was standing in close proximity to the residence when he smelled the raw marijuana,
coupled with the drug evidence found in the trash two days earlier, was sufficient to
establish probable cause to search the residence); Boldin, supra at 493-495 (2)
(concluding that the trial court correctly ruled that officer had probable cause to
suspect that contraband was inside the defendant’s residence, where upon officer’s
exit of his car approximately 20 feet from the threshold of the defendant’s open
garage door, the officer immediately smelled the odor of burning marijuana, which
smell became stronger as the officer walked toward the garage door; where the
defendant then “scooped up a trash bag off the floor in his arm and took off running
into the house and slammed the door”; and where some items then fell out of the
garbage bag onto the floor, including a gallon zip-loc bag that appeared to contain
marijuana residue).
18
Martinez-Vargas, supra at 237(1) (“While the odor of marijuana alone might
be insufficient to provide probable cause for the search of a residence, it can serve as
one of the factors, under the totality of the circumstances, that will support a finding
of probable cause.”) (citations omitted); Boldin, supra at 495 (2) (“Although the odor
of marijuana may not suffice by itself to provide probable cause for the search of a
residence, the odor of burning marijuana is one of the factors which, under the totality
of the circumstances, will support a finding of probable cause.”) (footnotes omitted).
19
284 Ga. App. 70 (643 SE2d 342) (2007).
20
Supra at __ (emphasis supplied).
6
attempt to predict any and all possible future sets of circumstances. Instead, it
expressly invoked the rule that the odor of marijuana is to be considered amongst the
totality of the circumstances.21 Pando, like all the other cases, was correctly decided
using the totality of the circumstances analysis.22
Because Shivers, Charles, Patman, Fossett, Boldin, Martinez-Vargas, and
Pando did not make the holdings ascribed to them by the majority, because they
correctly invoked the applicable standards and principles, because they analyzed their
respective underlying circumstances to reach a correct result, and/or because they are
readily distinguishable from the instant case and thus not implicated here, there is no
proper basis for disapproving or overruling them. “[T]he rule of stare decisis is a
wholesome one.”23 While “stare decisis should not be applied to the extent that an
error in the law is perpetuated,”24 the majority has pointed to nothing constituting an
21
Pando, supra at 76-77 (2) (a) (“[T]he odor of marijuana may be considered
as part of the totality of circumstances in determining whether there is sufficient
probable cause to support a search warrant.”) (citation omitted).
22
Palmer, supra.
23
Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009) (citations and
punctuation omitted).
24
Smith v. Baptiste, 287 Ga. 23, 25 (1) (694 SE2d 83) (2010); see Harper,
supra.
7
erroneous statement of the law of Georgia. I cannot go along with disapproving
and/or overruling Georgia’s case law in such manner.
Furthermore, I believe that the holding articulated today by the majority – “[I]f
the affidavit for the 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.”25 – goes astray from well-
established standards applicable to various levels of judicial scrutiny involved in the
warrant process.26 Moreover, it can only convolute the longstanding and sound rule
of law that the odor of marijuana be considered amongst the totality of the
circumstances when undergoing a probable-cause analysis.
The circumstances presented by this case – when considered under the
standards reiterated in Palmer27 and under Georgia’s long-established rule concerning
25
Supra at __.
26
See, e.g., Palmer, supra at 77 (“The magistrate’s task in determining if
probable cause exists to issue a search warrant is simply to make a practical,
common-sense decision whether, given all the circumstances set forth in the affidavit
before him, including the veracity and basis of knowledge of persons supplying
hearsay information, there is a fair probability that contraband or evidence of a crime
will be found in a particular place.”) (citations and punctuation omitted).
27
Supra.
8
the odor of marijuana – show that the trial court did not err in concluding that the
averment that officers had detected the odor of raw marijuana emanating from the
residence did not establish probable cause for the issuance of a warrant to search the
residence.28 As the majority concedes, “[t]he trial court granted the motion to suppress
in reliance on precedent from this Court which supported the defendant’s position.”29
Neither the federal cases cited nor the state cases cited by the majority control
this issue in Georgia.
For these reasons, I dissent.
I am authorized to state that Presiding Judge Ellington joins in this dissent.
28
See Pando, supra at 77 (2) (“[L]one statement that the officers smelled
[fresh] marijuana when the defendants opened the door was insufficient to establish
probable cause for a search warrant for [defendant’s] residence.”) (citation omitted);
see generally Davis v. State, 262 Ga. 578, 584 (4) (422 SE2d 546) (1992) (neither
criticizing the police, nor praising the appellant; rather, “acknowledg[ing] the right
of privacy in one’s home”).
29
Supra at __ (emphasis supplied).
9