Tenth Circuit Affirms Human Sniff Test
In an opinion involving a review of warrants issued for searches of homes and warrantless searches of vehicles, the Tenth Circuit ruled that a trained officer's purported smell of methamphetamine manufacturing provided probable cause to obtain a warrant to search a residence. United States v. Windrix, 04-5016 (May 3, 2005). The opinion also approved the search of a vehicle despite the warrantless arrest of the driver and his detetnion for four hours while police obtained a warrant.
The defendants, convicted of manufacturing methamphetamine, challenged a number of searches of their homes and the one vehicle search. The most significant legal precedent coming from the opinion appears to be its approval of the officer's sense of smell. The officer claimed to be "certified" by the DEA in the detection of the odor of methamphetamine manufacturing. The warrant was based solely upon his purported sniff. The Tenth Circuit held the sniff was sufficient:
Mook contends that this search was not supported by probable cause, because humans cannot reliably identify odors. But we have repeatedly held in vehicle-search cases that "[a]n officer's detection of the smell of drugs, such as methamphetamine . . . can be an independently sufficient basis for probable cause." United States v. West, 219 F.3d 1171, 1178 (10th Cir. 2000) (collecting cases). We see no reason to limit these cases to vehicle searches: the scent of methamphetamine, wherever detected, gives qualified officers probable cause to search for methamphetamine and evidence of methamphetamine manufacturing.
The Court also approved the search of a defendant's vehicle despite his four hour warrantless detention:
Windrix contends that his four-hour detention at police headquarters was unconstitutional and that the evidence discovered in the search of his car must therefore be suppressed. But we suppress evidence because of an unconstitutional arrest only when the evidence was discovered by exploitation of the arrest. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).
Windrix rightly concedes that "the arresting officers had probable cause to search [his] vehicle right . . . after the dog alert." Windrix's Aplt. Br. at 19. It was the dog alert, not the arrest or anything Windrix said or did during the arrest, that justified the search. The evidence was not discovered by exploitation of the arrest. Consequently, it was proper not to suppress the evidence, regardless of the constitutionality of the arrest. See United States v. Shareef, 100 F.3d 1491, 1508 (10th Cir. 1996) (seizure of vehicle was not fruit of unlawful detention of occupants); United States v. Eylicio-Montoya, 70 F.3d 1158, 1166-67 (10th Cir. 1995) (burlap bags containing marijuana would not have been any less visible had car's occupants not been unlawfully arrested).
The significant problem with allowing officers to obtain search warrants based on their sense of smell is the naturally subjective nature of the sense of smell and the probability of its manipulation. Since the manufacture of methamphetamine involves a number of chemicals, the sniff test subjects many people to searches when their use of the chemicals is innocent and consistent with the law.
does odor of anhydrous ammonia coming from inside a home, door ajar 2 inches, justify warrantless search, when no exigent circumstances exist? Also, no other independent sources involved.
I would say no. There appears to be no exigency.