BY THE COURT
1. On a
motion to suppress evidence, an appellate court reviews the
factual findings underlying the trial court's suppression
decision using a substantial competent evidence standard and
the legal conclusion drawn from those factual findings using
a de novo standard. The court does not reweigh evidence.
Warrantless searches are considered unreasonable and invalid
unless they fall within a recognized exception to the warrant
requirement. It is the State's burden to demonstrate a
challenged search was lawful.
warrantless search is permissible when there is probable
cause for the search and exigent circumstances justifying an
Probable cause to support a search can be established if the
totality of the circumstances indicates there is a fair
probability the place to be searched contains contraband or
evidence of a crime.
totality of the circumstances surrounding a law enforcement
officer's detection of the smell of raw marijuana
emanating from a residence can supply probable cause to
believe the residence contains contraband or evidence of a
crime. Such circumstances include, but are not limited to,
proximity to the odor's source, reported strength of the
odor, experience identifying the odor, elimination of other
possible sources of the odor, and the number of witnesses
testifying to the odor's presence. This is a case-by-case
determination based on the circumstances. Not all cases
relying on odor will have the same result.
Exigent circumstances include situations when a law
enforcement officer reasonably believes there is a threat of
imminent loss, destruction, removal, or concealment of
evidence or contraband.
determining the existence of an exigency based on the
potential loss of evidence, a reviewing court should consider
various circumstances, including: (a) the time needed to
secure a search warrant; (b) the reasonableness of the
officers' belief the evidence may be immediately lost;
(c) potential danger to the officers guarding the site while
awaiting a warrant; (d) whether those persons with possession
of the evidence are aware of the officers' presence; and
(e) the ease with which the evidence might be destroyed or
Whether a witness-expert or layperson-is qualified to testify
as to an opinion is to be determined by the trial court in
the exercise of its discretion.
of the judgment of the Court of Appeals in an unpublished
opinion filed April 22, 2016.
from Douglas District Court; Peggy C. Kittel, judge.
E. Rumsey, of Lawrence, argued the cause and was on the
briefs for appellant.
Duncan Butler, assistant district attorney, argued the cause,
and Patrick J. Hurley, assistant district attorney, Charles
E. Branson, district attorney, and Derek Schmidt, attorney
general, were on the brief for appellee.
C. Hubbard appeals his misdemeanor convictions of possession
of marijuana and possession of drug paraphernalia. He claims
the drug evidence should have been suppressed because: (1)
the initial warrantless entry into his apartment for a
security sweep was premised on a police officer's
statement that she smelled raw marijuana while standing at
the front door; (2) an affidavit supporting a search warrant
omitted material facts; and (3) the officer's
suppression-hearing testimony about smelling the raw
marijuana odor was inadmissible expert testimony. A Court of
Appeals panel affirmed. State v. Hubbard, No. 113,
888, 2016 WL 1614177 (Kan. App. 2016) (unpublished opinion).
We find no error and affirm.
and Procedural Background
on routine surveillance at a local convenience store,
Lawrence Police Officer Kimberly Nicholson checked a
vehicle's license plate. That records check indicated the
car had been stopped several weeks earlier with Irone Revely
driving. It was noted there was an active arrest warrant for
Revely's brother, Chayln Revely. Nicholson confirmed
Irone was the driver, and she believed the passenger matched
followed the vehicle, looking for a traffic violation that
would permit a vehicle stop and might allow the officer to
confirm the passenger's identity. No violation occurred,
so Nicholson followed the vehicle to an apartment complex.
The passenger got out and ran into an apartment. Irone
trailed behind. Nicholson approached and asked Irone if the
person who ran into the apartment was his brother. Irone did
not answer and continued walking toward the apartment with
apartment sweep and search
turned out, Hubbard was the passenger Nicholson saw. He came
out of the apartment to talk to the officer and acknowledged
he lived there.
later testified she was about 2 feet from the front door when
Hubbard exited. She further testified she "smelled a
strong odor of raw marijuana emanating from the
apartment." The officer questioned Irone and Hubbard
about the smell. Hubbard denied smelling anything and said
his lawyer told him humans cannot detect a marijuana odor.
front window blinds to the apartment were raised about a foot
above the sill, allowing Nicholson to see inside. The officer
saw five to seven people in the apartment. She testified she
could only look for a few seconds before Hubbard went back
inside and shut the blinds. As Hubbard reentered, Nicholson
again smelled raw marijuana. Around this time, additional
police officers arrived.
officers decided to apply for a warrant to search the
apartment. They ordered everyone to leave. No one was
searched as they left. The officers testified they did not
smell marijuana on anyone as they were leaving.
officers, including Nicholson, did a security sweep to make
sure no one remained in the apartment. Nicholson testified
the sweep was to ensure no one could destroy evidence or pose
a threat to the officers. She testified the sweep was limited
to places where a person could hide. The officers observed
drug paraphernalia, a handgun, and a locked safe in a closet
in Hubbard's room.
applied for the search warrant, which was granted. During the
warrant's execution, officers pried open the safe and
found 25.07 grams of raw marijuana inside a Tupperware
container. The officers also found 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. The State charged Hubbard with one count of
possession of marijuana and one count of possession of drug
paraphernalia, both class A nonperson misdemeanors.
filed a motion to suppress the evidence from the apartment.
He argued the officers' initial sweep was an illegal
search that invalidated the subsequent warrant. He argued the
smell of marijuana detected by an officer does not by itself
provide the probable cause for a search. He also contended
Nicholson lied about smelling raw marijuana or possibly spoke
with reckless disregard for the truth. Finally, Hubbard
claimed there was no factual basis for the protective sweep
prior to obtaining the search warrant.
hearing on the suppression motion, Nicholson and Lawrence
Police Officer Ronald Ivener testified. Both described
noticing the strong marijuana smell. Nicholson said she
"smelled a strong odor of raw marijuana emanating from
the apartment." Ivener testified that when the door
opened and closed, he could identify "the potent smell
of raw marijuana emitting from inside the apartment." He
also said he smelled a "mixture of both" raw and
burnt marijuana during the sweep.
contradicted the officers in his testimony. He said he did
not run into his apartment, but merely
"power-walked" because he was having a party and
wanted everyone to quiet down since a police car was in the
parking lot. He claimed there was no marijuana smell, only
cigarette smoke and incense. Hubbard denied Nicholson was 2
feet from the front door when she claimed to smell raw
marijuana, insisting she was 6 or 7 feet away. He contended
Nicholson fabricated smelling marijuana after he became angry
with her because he believed the officer racially profiled
him by assuming he was Irone's brother with the active
suppression hearing transcript reflects the State offered
Nicholson's probable cause affidavit into evidence and
that the district court admitted it. But Hubbard did not
include that affidavit in the record on appeal.
testified officers found raw marijuana in a safe in
Hubbard's bedroom closet and burnt marijuana in the
living room while executing the warrant. She also said the
officers observed items of "evidentiary value,"
including "bongs and pipes sitting on the window
sill" of Hubbard's bedroom, during the initial
district court denied the motion to suppress. Among its
factual findings, the court concluded: (1) Nicholson had
"detected the smell of raw marijuana 200 to 500 times
and burnt marijuana 100 to 300 times" in her law
enforcement training and professional experience; (2) when
Hubbard came out of his apartment, closing the door behind
him, both Nicholson and Ivener could smell what they
identified as the odor of raw marijuana coming from the
apartment; (3) Ivener testified the smell was
"potent" and "overwhelming"; (4)
Nicholson observed two bongs and six smoking pipes on a
windowsill and found a gun under a bed and another bong and a
safe in the closet all located in the back bedroom while
conducting the security sweep; (5) Nicholson smelled raw
marijuana during the sweep; and (6) a search warrant was
requested by Nicholson, supported by affidavit, setting forth
the evening's events, including the security sweep.
court said it gave "no weight" to an academic study
introduced by Hubbard to support his argument that the
officers could not accurately identify the marijuana smell.
The 2004 article from the Smell and Taste Center, University
of Pennsylvania School of Medicine, is entitled:
"Marijuana Odor Perception: Studies Modeled from
Probable Cause Cases." Hubbard argued it cast serious
doubt about whether humans can accurately identify marijuana
based on smell, but the court discredited the study's
value. The court determined the study's research
parameters did not accurately compare to the facts in
Hubbard's case. The court noted the article limited its
findings to suggest there is "no convincing evidence
that lay persons could reliably detect the marijuana
odor under the test conditions." But, the court
observed, the article's authors admitted training could
improve detection performance.
district court relied on State v. MacDonald, 253
Kan. 320, 856 P.2d 116');">856 P.2d 116 (1993), and State v. Riley,
No. 93, 127, 2006 WL 90089 (Kan. App. 2006) (unpublished
opinion), in concluding the odor of marijuana coming from the
apartment supplied probable cause "to seek and obtain a
search warrant." The court also noted Nicholson included
observations in the warrant affidavit about drug
paraphernalia during the protective sweep, when stating:
"The strong odor of raw marijuana coming from the
residence, along with the observation of drug paraphernalia
in the apartment gave probable cause to the officers to
obtain a search warrant."
moved for reconsideration. He argued when the officers
testified about smelling marijuana, they were experts under
K.S.A. 2017 Supp. 60-456, so their testimony would only be
admissible after demonstrating the reliability of their
methods- or, in this case, their ability to identify
marijuana by smell. The court denied reconsideration and
ruled Nicholson testified as a lay person. The court
"She's not an expert in the field of odors.
She's not an expert in marijuana, but she does have
training. And there are numerous cases that allow for
officers to testify based on their individual personal
observations and their training just to become a police
officer, and she's testified to that, and this court is
aware of that training. I find her training was sufficient.
It goes more to the weight that her testimony gives and not
the admissibility of it."
bench trial, the court adopted its factual findings set out
in its initial ruling on the suppression motion and made
additional findings that both Nicholson and Ivener identified
the marijuana odor, that the officers discovered drug
paraphernalia while conducting a sweep prior to obtaining the
search warrant, and that the drug paraphernalia was
consistent with personal drug use. Relying on these findings
the court convicted Hubbard on both counts.
court sentenced Hubbard to two 12-month jail sentences and
granted probation. Hubbard appealed.
Court of Appeals decision
appeal, Hubbard argued the suppression motion should have
been granted because the officers' warrantless entry into
his residence, ostensibly for officer safety and to prevent
evidence destruction, violated the Fourth and Fourteenth
Amendments to the United States Constitution and § 18 of
the Kansas Constitution Bill of Rights. The panel declined to
consider the § 18 claim because Hubbard only mentioned
it once and did not explain its relevance. It also noted
§ 15 prohibits unreasonable searches and seizures, not
§ 18. Hubbard, 2016 WL 1614177, at *4.
State argued probable cause existed for the search warrant
based on the officers detecting the raw marijuana odor
originating from Hubbard's apartment, even if the
protective sweep was not reasonable. Moreover, the sweep was
reasonable under the probable cause plus exigent
circumstances exception to the warrant requirement, the State
contended, because officer safety and the possibility for
evidence destruction were exigent circumstances justifying
warrantless entry. It also argued even if the officers lacked
probable cause for the warrant, the evidence seized from
Hubbard's bedroom remained admissible under the
good-faith exception since the officers applied for a warrant
before attempting the search. 2016 WL 1614177, at *4.
panel held the officer safety justification was inapplicable
because it is limited to warrantless sweeps incident to a
lawful arrest, noting the sweep here occurred prior to
Hubbard's arrest. The panel also held the officers failed
to articulate specific facts that reasonably warranted a
belief that anyone in Hubbard's apartment posed a danger
to the officers or others. 2016 WL 1614177, at *5.
panel agreed with the State that the sweep was justified by
the officers' perceived need to preserve evidence. It
noted this need can only supply exigent circumstances
justifying a warrantless search if there is probable cause to
believe a crime has been committed and that evidence may be
found in a specific place. 2016 WL 1614177, at *5 (citing
State v. Ibarra, 282 Kan. 530, 544, 147 P.3d 842');">147 P.3d 842
). And the panel held the smell of marijuana provided
probable cause to believe "the crime of possession of
marijuana had been committed and that evidence of that crime
might be found in Hubbard's apartment." 2016 WL
1614177, at *5-7 (comparing State v. ...