State v. Kazmierczak

• Decision Date: 30 March 2015
• Docket Number: No. A14A2046.,A14A2046.
• Citation: 331 Ga.App. 817,771 S.E.2d 473
• Parties: The STATE v. KAZMIERCZAK.
• Court: Georgia Court of Appeals

331 Ga.App. 817

771 S.E.2d 473

The STATE

v.KAZMIERCZAK.

No. A14A2046.

Court of Appeals of Georgia.

March 30, 2015.

D. Victor Reynolds, Marietta, Daniel James Quinn, for Appellant.

Hylton B. Dupree Jr., Blake Robert Carl, Marietta, for Appellee.

Opinion

RAY, Judge.

Peter Joseph Kazmierczak was charged by accusation with possession of marijuana with intent to distribute and manufacturing marijuana (OCGA § 16–13–30(j)(1) ). Kazmierczak filed a motion to suppress the evidence, contending that the search of his residence was illegal because it was conducted under a search warrant that was issued solely based upon the strong odor of marijuana that police detected when they visited the home. The trial court granted the motion to suppress in reliance on precedent from this Court which supported the defendant's position. The State appeals, contending that our previous rulings were incorrect to hold that the detection of odor of drugs alone could not provide a legal basis for the issuance of a search warrant. Because we agree, we reverse and remand this case to the trial court.

Viewing the evidence in the light most favorable to uphold the trial court's findings and judgment, Henson v. State, 314 Ga.App. 152, 153, 723 S.E.2d 456 (2012), the record shows that on February 6, 2013, law enforcement officers assigned to the Marietta–Cobb–Smyrna Narcotics Unit went to Kazmierczak's residence to conduct a “knock and talk” after receiving a complaint that the residence was being used to manufacture marijuana. While three of the officers remained out of sight, two of the officers approached the house and knocked on the front door. An adult female came to the door and told the two officers to go to the garage, and they complied.

When the officers entered the garage, they detected the odor of raw marijuana. The female, later identified as Kazmierczak's mother, greeted the officers in the garage and asked them to wait there for a second while she secured a large dog. Upon her return, the officers explained to her that they had received a complaint about marijuana manufacturing taking place at the residence, and they asked about the whereabouts of Kazmierczak. She told the officers that her son was not there and asked them if she could help them with anything, stating that she was the owner of the residence. The officers then asked her if they could come inside, and she consented. Immediately upon entering the residence, the officers detected a stronger, “overwhelming” odor of raw marijuana.

Based on this odor and without venturing further into the residence, the officers decided to seek a search warrant. Two officers remained in the entryway of the residence while they waited for the search warrant, and no search of the residence was conducted prior to the issuance of the search warrant.¹

The affidavit for the search warrant indicated that the probable cause for the warrant was based solely on the narcotics officers' detection of the strong odor of raw marijuana inside the residence. The affidavit further indicated that the officers detected the odor during the “knock and talk” investigation concerning possible drug activity at the residence. The affidavit also set forth the training and experience of the narcotics officers who were involved in the warrant application. Finding these facts to be sufficient to establish probable cause to believe that marijuana could be found on the premises, a magistrate judge issued a search warrant for Kazmierczak's residence.²

Following a hearing on Kazmierczak's motion to suppress, the trial court concluded that the odor of marijuana alone could not serve as the basis for the search warrant of the residence. As a result, the trial court found that the search warrant was issued without the requisite showing of probable cause, and it suppressed the evidence seized from the subsequent search. The State appeals from the trial court's ruling.

In State v. Palmer, 285 Ga. 75, 673 S.E.2d 237 (2009), our Supreme Court described the standards applicable to the various levels of judicial scrutiny involved in the warrant process. A magistrate determines if probable cause exists to issue a warrant by making

a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The trial court may then examine the issue as a first level of review, guided by the Fourth Amendment's strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate's decision to issue a search warrant based on a finding of probable cause.... Our appellate courts will review the search warrant to determine the existence of probable cause using the totality of the circumstances analysis ... to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant.... In reviewing the trial court's grant or denial of a motion to suppress, we apply the well-established principles that the trial court's findings as to disputed facts will be upheld unless clearly erroneous and the trial court's application of the law to undisputed facts is subject to de novo review, keeping in mind that a magistrate's decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.

(Citations and punctuation omitted.) Id. at 77–78, 673 S.E.2d 237.

The State asserts that the trial court erred in granting the motion to suppress by ruling that the odor of marijuana alone cannot establish the requisite probable cause for the issuance of a search warrant for a residence. We agree, but acknowledge that the case law cited by the trial court supports its ruling. Obviously, then, over the years we have issued opinions that misapplied the law in this area, or have been misinterpreted, and must now correct our rulings.

In Clare v. State, 135 Ga.App. 281, 217 S.E.2d 638 (1975), we held that “[t]he odor of marijuana smoke is not, in and of itself, sufficient to afford probable cause for a warrantless search, but it may be considered and may be a part of a totality of circumstances sufficient to validate [a warrantless search].” (Citation omitted.) Id. at 283(2), 217 S.E.2d 638. We further acknowledged that, while odors alone cannot authorize a warrantless search, such odors may form a proper basis for the issuance of a search warrant. Id. Accord Johnson v. U.S., 333 U.S. 10, 13(I), 68 S.Ct. 367, 92 L.Ed. 436 (1948) (while the presence of odors is insufficient to authorize a warrantless search, proper evidence of the presence of odors may be sufficient to justify the issuance of a search warrant).

In State v. Folk, 238 Ga.App. 206, 521 S.E.2d 194 (1999), we considered the issue of whether the odor of burning marijuana, standing alone, could constitute sufficient probable cause to support a warrantless search of an automobile. Recognizing that “the ‘automobile exception’ to the warrant requirement of the Fourth Amendment applies to the search of a vehicle when probable cause exists to believe it contains contraband[,]” as well as the fact that the presence of an odor may be sufficient to establish probable cause, we held that a trained police officer's detection of the odor of burning marijuana emanating from the interior of a vehicle constituted sufficient probable cause to support the warrantless search of a vehicle. Id. at 208, 521 S.E.2d 194.

In Patman v. State, 244 Ga.App. 833, 537 S.E.2d 118 (2000), we then considered the issue of whether the odor of marijuana, by itself, could establish probable cause for a warrantless search of a person. Id. at 833, 537 S.E.2d 118. In our analysis of that issue, we acknowledged that our holding in Folk, supra, authorized a warrantless search of a vehicle based solely on the odor of marijuana, but we found that there is “a lesser expectation of privacy in one's automobile than in other contexts such as one's [person,] home[,] or office.” (Footnote omitted.) Id. at 835, 537 S.E.2d 118. Accordingly, we held that the fact that the odor of marijuana establishes probable cause for the warrantless search of a vehicle “does not mean that such an odor, standing alone, will justify a [warrantless] search in other contexts[,]” such as a person's residence.³ Id. In so holding, we did not intend to imply that the odor of marijuana alone could not establish probable cause for the issuance of a search warrant. Rather, the intent of our holding in Patman was to point out that a search of one's person, home, or office based solely on the odor of marijuana could not be made without a warrant, absent exigent circumstances which would justify a warrantless search. See Clare, supra at 283–284(2), 217 S.E.2d 638. Our decision in Patman did not have any bearing on whether such an odor, by itself, would be sufficient to justify the issuance of a search warrant.

The seeds that later grew into our misapplication of the law seem to have been planted in Shivers v. State, 258 Ga.App. 253, 573 S.E.2d 494 (2002). In this case, we reversed the conviction of a defendant who was encountered by police outside his home smelling of burnt marijuana, such fact which was used to obtain a warrant to search his home. We acknowledged that the odor of marijuana is one factor that may be considered in determining whether, under the circumstances, probable cause exists to authorize the issuance of a search warrant. See State v. Fossett, 253 Ga.App. 791, 793(1), 560 S.E.2d 351 (2002), citing Patman, supra; State v. Charles, 264 Ga.App. 874, 876(2), 592 S.E.2d 518 (2003), citing Shivers, supra and Patman, supra. However, we found that the smell of burnt marijuana on the defendant outside his residence did not establish that it was smoked in or could be found inside the...