State v. Hubbard, 113,888

• Decision Date: 07 December 2018
• Docket Number: No. 113,888,113,888
• Parties: STATE of Kansas, Appellee, v. Lawrence C. HUBBARD, Appellant.
• Court: Kansas Supreme Court

430 P.3d 956

STATE of Kansas, Appellee,

v.Lawrence C. HUBBARD, Appellant.

No. 113,888

Supreme Court of Kansas.

Opinion filed December 7, 2018.

James E. Rumsey, of Lawrence, argued the cause and was on the briefs for appellant.

Kate 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.

The opinion of the court was delivered by Biles, J.:

Lawrence 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. 113888, 2016 WL 1614177 (Kan. App. 2016) (unpublished opinion). We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

While 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 Chayln's description.

Nicholson 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 Nicholson following.

The apartment sweep and search

As it turned out, Hubbard was the passenger Nicholson saw. He came out of the apartment to talk to the officer and acknowledged he lived there.

Nicholson 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.

The 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.

The 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.

Three 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.

Nicholson 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.

The suppression motion

Hubbard 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.

At a 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.

Hubbard 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 arrest warrant.

The 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.

Nicholson 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 sweep.

The 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.

The 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.

The district court relied on State v. MacDonald , 253 Kan. 320, 856 P.2d 116 (1993), and State v. Riley , No. 93127, 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."

Hubbard 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 reasoned:

"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."

After a 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...