Bunnell v. State

• Decision Date: 02 September 2021
• Docket Number: Supreme Court Case No. 21S-CR-139
• Citation: 172 N.E.3d 1231
• Court: Indiana Supreme Court
• Parties: Jesse R. BUNNELL, Appellant v. STATE of Indiana, Appellee

172 N.E.3d 1231

Jesse R. BUNNELL, Appellant

v.STATE of Indiana, Appellee

Supreme Court Case No. 21S-CR-139

Supreme Court of Indiana.

Argued: June 10, 2021

Filed September 2, 2021

ATTORNEYS FOR APPELLANT: Dylan A. Vigh, Law Offices of Dylan A. Vigh, LLC, Indianapolis, Indiana, John A. Kassis, Law Office of John A. Kassis, Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: Theodore E. Rokita, Attorney General of Indiana, Stephen R. Creason, Chief Counsel of Appeals, Evan M. Comer, Deputy Attorney General, Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, No. 20A-CR-981

Rush, Chief Justice.

Weed, grass, herb, endo, chronic—despite its many nicknames, no other substance has the distinct, pungent, and pervasive odor of raw marijuana. And law enforcement officers are specifically taught to detect this odor as part of Indiana's standard police academy training—training they frequently put into use in the field.

With those considerations in mind, we must answer a question of first impression: whether an officer who attests only that they possess the necessary training and experience to detect the smell of raw marijuana allows a warrant-issuing judicial officer to infer that the affiant is qualified to recognize this odor. Because trained and experienced law enforcement officers require no exceptional olfactory acuity to identify the distinctive scent of raw marijuana, an officer seeking a search warrant on this basis need not detail their qualifications—beyond their "training and experience"—to identify the drug's smell. We therefore affirm the trial court's denial of Bunnell's motion to suppress.

Facts and Procedural History

Jesse Bunnell lived in a rental home with Amber Richardson and her two children. In April 2018, police responded to the home for a welfare check after receiving a report that Bunnell had battered Richardson.

Deputy David Elmore was the first to arrive. After knocking on the home's two ground-level doors and receiving no response, he continued up a set of exterior stairs to another door. There, he noticed two things: a security camera with wires passing through the door jamb and the smell of raw marijuana emanating from the door. Deputy Elmore asked Deputy Christopher Anderson, who had arrived to assist, for "a second opinion"; Deputy Anderson agreed that he smelled raw marijuana.

After contacting Richardson and confirming that she and the children were safe at a domestic violence shelter, Deputy Elmore applied for a search warrant to further investigate the marijuana odor. The affidavit affirmed, under penalty of perjury, that Deputy Elmore "observed through [his] training and experience the smell of raw [m]arijuana emitting from the door" and that Deputy Anderson "advised through his training and experience he smelled raw [m]arijuana as well." The affidavit sought authorization to search the residence, two vehicles parked on the property, and a detached garage. The judge granted the search warrant for the house only; and a subsequent search of the premises revealed approximately nine pounds of raw marijuana, multiple marijuana plants under grow lights, smoking pipes, a scale, and other drug paraphernalia.

The State charged Bunnell with dealing in marijuana, possession of marijuana, and maintaining a common nuisance—all Level 6 felonies—and one count of Class C misdemeanor possession of paraphernalia. Bunnell moved to suppress the seized items, arguing that the search violated the Fourth and Fourteenth Amendments to the United States Constitution and Article 1, Section 11 of the Indiana Constitution because the affidavit failed to specify the deputies’ "training and experience" in detecting a specific smell. After a hearing, the trial court denied Bunnell's motion to suppress.

On Bunnell's interlocutory appeal, the Court of Appeals reversed, holding that the search-warrant affidavit failed to adequately detail the deputies’ relevant training or experience in detecting the odor of raw marijuana. Bunnell v. State , 160 N.E.3d 1142, 1151 (Ind. Ct. App. 2020). Finding that issue dispositive, the Court of Appeals declined to address two other issues Bunnell raised. Id. at 1146 n.2.¹ The State petitioned for transfer, which we granted, vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).

Standard of Review

We apply a deferential standard of review to a warrant-issuing judge's probable-cause finding, affirming if the judge has a "substantial basis" for determining that probable cause existed. Heuring v. State , 140 N.E.3d 270, 273 (Ind. 2020). Our focus is "whether reasonable inferences drawn from the totality of the evidence support" the finding of probable cause. Id. (quoting Query v. State , 745 N.E.2d 769, 771 (Ind. 2001) ). However, to the extent a motion to suppress raises constitutional issues, we review the trial court's decision de novo. Osborne v. State , 63 N.E.3d 329, 331 (Ind. 2016).

Discussion and Decision

The parties agree that a search warrant must be based on probable cause. They dispute, however, whether the assertions in the affidavit sufficiently detailed the deputies’ expertise in identifying the odor of raw marijuana to support the probable-cause determination. Bunnell argues the assertions were not sufficient; the State argues they were.

We agree with the State. Because the scent of raw marijuana is so distinctive, and because marijuana is one of the most ubiquitous drugs in today's society, we hold that a trained officer seeking a search warrant on this basis need not further detail their qualifications to recognize this odor beyond their basic "training and experience."

But before we explore this issue in depth, we provide a brief background on the doctrine requiring a judge to find a substantial basis for probable cause before issuing a search warrant.

I. A warrant-issuing judge must have a substantial basis for finding probable cause.

Both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution require search warrants to be based on probable cause. U.S. Const. amend. IV ; Ind. Const. art. I, § 11. This federal and state constitutional requirement is further codified in the Indiana Code, which lists the information that must be included in an affidavit supporting a search warrant. See Ind. Code § 35-33-5-2 (2021). Although the statute requires the affiant to provide the "facts known to the affiant through personal knowledge," it does not go so far as to require the affiant to explain how they learned those facts. Id. § -2(a)(3).

In deciding whether to issue a search warrant, the judge's task is to make a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Spillers , 847 N.E.2d 949, 952–53 (Ind. 2006) (alteration in original) (quoting Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). The duty of the reviewing court—whether a trial court ruling on a motion to suppress or an appellate court evaluating that decision—is to determine whether the warrant-issuing judge had a "substantial basis" for concluding that probable cause existed. Id. at 953 ; see also McGrath v. State , 95 N.E.3d 522, 527 (Ind. 2018). A substantial basis requires the reviewing court, with significant deference to the warrant-issuing judge's determination, "to focus on whether reasonable inferences drawn from the totality of the evidence support the determination of probable cause." Spillers , 847 N.E.2d at 953 (citing Houser v. State , 678 N.E.2d 95, 99 (Ind. 1997) ).

With those principles in hand, we now explore whether a substantial basis for probable cause existed here.

II. Officers who attest they detected the odor of raw marijuana based on their "training and experience" may present a substantial basis for probable cause.

The Supreme Court of the United States has long held that the "presence of odors" can establish probable cause for a search warrant if the following conditions are met: (1) the issuing judicial officer "finds the affiant qualified to know the odor"; and (2) the odor "is one sufficiently distinctive to identify a forbidden substance." Johnson v. United States , 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

The question presented then, is this: Can a warrant-issuing judicial officer reasonably infer that a law enforcement officer is qualified to recognize the odor of raw marijuana if that officer attests, without elaboration, that they possess the requisite training and experience to detect the smell? Our answer is yes. This is because Indiana law enforcement officers receive specialized training on the detection and identification of raw marijuana—training that is frequently used in the field—and raw marijuana has its own unique smell that is ubiquitous and unlike any other substance. We explain our holding in detail below.

Indiana law enforcement officers undergo mandatory training at the Indiana Law Enforcement Academy. I.C. §§ 5-2-1-1, -9. This basic training includes modules on search and seizure and drug identification, including instruction on detecting the odor of both raw and burnt marijuana. See generally Indiana Law Enforcement Academy, Basic Training—Tier I, https://www.in.gov/ilea/about-the-academy/basic-training-tier-i² ; Basic Course Re-Start Virtual, https://www.in.gov/ilea/files/Basic-Course-224-Re-Start-Weeks-8-13.pdf.³ And officers who are trained out of state and later hired by an Indiana law enforcement agency, like Deputy Anderson here, must complete a 40-hour pre-basic course while awaiting enrollment in the full 600-hour basic training course. Indiana Law Enforcement Academy, Frequently Asked Questions , https://www.in.gov/ilea/frequently-asked-questions/#another% 20state.⁴ See generally I.C. § 5-2-1-9(f). Those who have at least one year of paid full-time service as a police officer in another...