Smell of pot can be basis for police search

Though marijuana is now legal in Washington for recreational and medical use, courts continue to grant law enforcement wide leeway in using the presence of pot to search property.

A series of recent court rulings keeps the bar low for officers to search a location where they suspect marijuana is being smoked or grown. Washington judges have repeatedly said investigators don’t need to provide evidence a suspect is violating state marijuana laws when asking for a search warrant – only that the drug is present.

The rulings illustrate the lingering gray area for local law enforcement as they try to reconcile Washington statutes and federal law, which still classifies marijuana as an outlawed controlled substance.

“Everybody realizes it’s not a clear-cut issue,” said Susan M. Gasch, a Spokane appellate attorney who represented medical marijuana patient Daniel K. Ellis in fighting a charge of unlawful possession of a firearm.

A Spokane County sheriff’s deputy went to Ellis’ Spokane Valley home in March 2012 looking for a woman wanted on felony charges. The deputy noted he “began smelling an odor I recognized to be Marijuana through my training and experience” while approaching the garage, according to court records.

The deputy does not mention checking if Ellis was authorized to grow medical marijuana.

Using the smell test, sheriff’s deputies received a warrant to enter Ellis’ Spokane Valley residence. They found multiple plants but later learned Ellis had a valid permit to grow medical marijuana.

They also found a loaded shotgun, which Ellis was barred from owning as a convicted felon. A judge sentenced him to a month in jail for the firearms violation, though he faced no charges for the plants.

In establishing probable cause to search for the drug, courts continue to rely on a 1994 state Supreme Court ruling that the smell of marijuana is enough to authorize a warrant. That ruling predates both of Washington’s voter-approved pot decriminalization laws – the legalization of medical marijuana in 1998 and the measure allowing the sale of recreational pot in 2012.

Seattle attorney Suzanne Lee Elliott, who represented Stevens County resident Jared Lee Fry in a state Supreme Court case involving medical marijuana, said a change to the status quo of establishing probable cause would have to occur at the local level.

“I think you have to have magistrates and judges saying, ‘I’m not sure that’s enough, because you can’t smell amounts,’ ” Elliott said. Under Washington state laws, it is legal for a person to possess up to an ounce of marijuana for recreational use. A “qualified patient and a designated provider” of medical cannabis can possess up to 24 ounces and 15 flowering plants.

The Seattle Police Department has said it will not search property based on the smell of marijuana alone. Law enforcement agencies in the Spokane area continue to list the smell as supporting probable cause for a search, though recent warrants have included other details supporting suspicions for a search warrant.

“We will do whatever we can to legally verify that somebody has a legal grow, without entering the residence,” Spokane police spokeswoman Monique Cotton said.

Though appeals courts have only weighed in on medical marijuana cases, with legal recreational pot hitting the street it’s likely judges will have to decide if the scent of marijuana alone can be the basis of a search warrant, attorneys said.

Ellis appealed his firearms sentence, joining others across the state who have unsuccessfully asked to throw out evidence seized in searches based on officers smelling marijuana. In all those cases, officers made no mention of determining whether the marijuana grow was legal under state law. But the courts have repeatedly said officers don’t have the resources to quickly determine whether a medical grow operation is legal, and it’s impossible to know before a search whether a property owner is following medical marijuana laws.

Changes to medical marijuana laws proposed in 2011 originally tasked the state’s Agriculture Department with registering and listing all those authorized to grow medical cannabis. But then-Gov. Christine Gregoire vetoed that portion of the law, saying it would open state employees to federal prosecution.

The result has left local law enforcement without a way to further investigate before entering a property. Spokane prosecutors say the only thing for investigators to do is search first, then determine if criminal activity is taking place.

“The search warrant must be executed before any questions of legality are addressed,” wrote Spokane deputy prosecuting attorney Andrew J. Metts, arguing to uphold Ellis’ conviction. Authorities have no way of knowing whether medical marijuana laws are being complied with from outside the property, he noted.

But Elliott, the Seattle attorney, said there’s an easy fix for that.

“Why is the officer’s very first action to get a warrant?” she said. “He could go up and knock on the door.”

Cotton, the Spokane police spokeswoman, said officers attempt to contact a home owner before entering a residence where a grow operation is suspected. As recently as this month, Spokane investigators were using confidential informants to purchase marijuana from suspected illegal marijuana dealers, according to court documents.

County deputies have employed techniques in addition to the smell test to develop probable cause for a search warrant. Some include statements that deputies checked the outside of the property for “visible documentation” that an operation was medically approved for growing, according to one affidavit – though the law does not require such a posting. Other deputies requesting warrants contacted the state’s Liquor Control Board, which maintains a public listing of growers authorized under the state’s recreational marijuana laws, but not medical growers.

One Spokane County sheriff’s deputy said in a request for a warrant in April that he Googled a property owner to see if he had a medical marijuana license.

The Sheriff’s Office directed questions about marijuana legality to the Spokane County Prosecutor’s Office. Attorneys there did not return calls seeking comment.

The decision in Ellis’ case, in which an appeals court ruled in January that the scent of marijuana was sufficient grounds for a warrant, has had far-reaching consequences. This month alone, at least two local defendants lost bids to throw out evidence obtained in a search where the officer made no attempt to determine if marijuana was being grown legally under state laws before entering a property.

But criminal defense lawyers, like Gasch and Elliott, note that change might be on the horizon. In a concurring opinion in the Ellis case, appellate court Justice George B. Fearing wrote that the state’s current position on search and seizure in medical marijuana cases is untenable.

“Washington medicinal marijuana law reflects the unamerican principle that the innocent grower or user carries the burden of establishing his or her own guiltlessness,” Fearing wrote.

Though it declined to act on the Ellis decision, the state Supreme Court is scheduled to take up the issue again later this summer in its review of similar cases. Gasch said the decision could go a long way toward clearing up the hazy positions of courts, law enforcement and marijuana users.

“Defense attorneys don’t really want to hamper police from doing their job,” she said. “But we are trying to kind of hold them to the fire.”