Search and Seizure: Utah Supreme Court Holds Mere Odor of Marijuana Not Enough for a Warrantless Home Search

In a ruling last Friday, the Utah Supreme Court held that the odor of burning marijuana is not sufficient to allow police to enter a residence without a warrant. The ruling in Utah v. Duran means that in Utah, police will no longer be able to use the old "I think I smell marijuana" routine as a pretext for conducting warrantless searches of homes.

The case began in Price, Utah, in 2003, when police were called to a residence by relatives who claimed people were smoking marijuana inside. When police arrived, they reported that "marijuana smoke was leaking out the cracks of the trailer," thus giving them probable cause to seek a search warrant. But police feared the suspects were "in the process of smokin' up all the evidence," so they entered without taking the time to get a warrant.

Inside, they found three people, as well as marijuana. The three were arrested, and one of them, Bernadette Duran, sought to have the evidence against thrown out as the result of an unlawful search. Duran lost at the trial court level, but won in the state appeals court, and now that victory has been ratified by the state Supreme Court.

In its 4-1 decision, the high court said that while there are exceptions to the search warrant requirement, such as preventing the imminent destruction of evidence, smelling pot smoke is not one of them. "We decline to grant the aroma of burning marijuana a place on an exclusive, limited roster of exceptions to the requirement that a warrant be secured before a lawful search can occur," Justice Ronald Nehring wrote for the majority. "The aroma of marijuana must be accompanied by some evidence that the suspects are disposing of the evidence, as opposed to casually consuming it."

That was a step too far for the lone dissenter in the case, Associate Chief Justice Michael Willkins, who argued that the odor of pot smoke could at times justify a warrantless search. "In a case where illegal drugs are being burned out of sight but not out of smell, and where the quantity of drugs is unknown to the officers, a presumption that the drugs are being destroyed rather than merely consumed is not unreasonable," Wilkins wrote.

But thankfully, his was the dissenting opinion.