Ohio Appeals Ct Says an "Overwhelming Odor of Raw Marijuana" was Sufficient Probable Cause to Search a Home but Dismissed the Case b/c Cops Unlawfully Broke-In to Obtain Info for the Search Warrant

From [HERE] The officers’ smell of raw marijuana at a house was probable cause. This is different than the case of burnt marijuana not justifying a search of the trunk of a car. In an IAC claim, defendant didn’t plead any evidence to show defense counsel should have requested a Franks hearing. State v. Dockum, 2020-Ohio-4163, 2020 Ohio App. LEXIS 3064 (6th Dist. Aug. 21, 2020).

The court explained the facts of the case as follows:

On January 21, 2018, city of Rossford patrol officers Brandon Lewis and Austin McDermott planned to meet for dinner around 7:00 p.m. at a diner on Superior Street, in Rossford, Ohio. Officer McDermott parked in front of an apartment building at 153 Superior, and as he exited his vehicle, he smelled raw marijuana. After Officer Lewis arrived, he joined McDermott and indicated that he, too, smelled raw marijuana. The officers initially suspected the odor was emanating from an open window in the apartment building. After the two walked up and down the street, investigating the source of the odor, and after speaking with an apparent tenant from the apartment building, they ultimately determined the smell was emanating from a nearby storefront at 155 Superior. The apartment resident informed Lewis and McDermott that he had noted a marijuana odor at 155 Superior over the past two to three weeks and suggested someone should investigate the matter.

{¶ 3} The officers checked out the building at 155 Superior. The storefront had a bolt on the front door, boards over the windows, and no signs, lights, or activity to suggest an active business. Fencing between 155 Superior and adjoining buildings prevented officers from viewing the rear of the building, so the officers walked around the apartment building at 153 Superior to access the alley that ran behind the two properties.

{¶ 4} As Lewis and McDermott walked along the alley and neared the rear of 155 Superior, the odor of raw marijuana intensified. The two repeatedly stepped away from 155 Superior and walked back to confirm the source of the odor as 155 Superior. They then entered the property through a closed gate, and noted a garage, fencing, and overgrown vegetation. The property also had a shed, but vegetation covered the structure, with vines blocking the doors. The officers also saw a truck on the property, and a grill and lawn chair in the backyard area. There were two rear doors on the building, as well as a sign indicating the address as 155 1⁄2. A security light, mounted on the building, illuminated the back of the structure.

{¶ 5} Officer Lewis discovered one of the doors on the back of the building was unlocked. Due to the condition of the structure, with rotting, swollen wood framing the door, Lewis could not easily open this door. There was also a bookshelf pushed up against the inside of the door, preventing the door from swinging open. Lewis was able to nudge the door open a few inches, and through that gap, he and McDermott viewed a washer and dryer, clothes, and other items suggesting someone lived in the structure. They also spotted tomato cages, often used in grow operations, and the odor of raw marijuana became much stronger. Lewis closed the door, and he and Officer McDermott exited the property to notify their shift supervisor and consult with a detective.

{¶ 6} As they stood in the alley, phoning the shift supervisor, Kayla Wallace pulled her vehicle into the alley and spoke with the officers. They informed her of the odor of raw marijuana and requested consent to search the home. Wallace declined, indicating she had to go to work. The officers subsequently observed her driving past the property several times, parking down the block, and running back and entering the property. The Officers later determined that Kayla Wallace and appellant resided at 155 1⁄2 Superior.

{¶ 7} Officer McDermott prepared an affidavit for a search warrant of the property, identifying the occupant as Kayla Wallace. He attested to the strong odor of raw marijuana emanating from the front and back of the structure at 155 Superior, and contact with a resident from the building next door, who informed officers that the odor of marijuana had been present for the past two or three weeks. The affidavit also contained facts gleaned from entering the rear of the property and pushing open a back door.

{¶ 8} The officers obtained the requested search warrant. Around 11:00 p.m., police searched the premises, and seized evidence of a grow operation from inside 155 1⁄2 Superior, including blowers, grow lights, hydroponic containers, chemicals, thermostats, containers holding unknown substances, marijuana plants and loose marijuana, and tomato cages. Based on the evidence seized, police filed charges against appellant and Kayla Wallace.

{¶ 9} On August 2, 2018, appellant was charged with Count 1: illegal cultivation of marijuana in violation of R.C. 2925.04(A) and (C)(5)(c), Count 2: illegal assembly or possession of chemicals for the manufacture of drugs in violation of R.C. 2925.041(A) and (C), Count 3: possession of marijuana in violation of R.C. 2925.11(A) and (C)(3)(c), and Count 4: possession of hashish in violation of R.C. 2925.11(A) and (C)(7)(d).

{¶ 10} Appellant entered a not guilty plea to the charges. Appellant and Kayla Wallace filed a joint motion to suppress evidence of the search, arguing the information gathered for the affidavit in support of the search warrant resulted from an unconstitutional search of the premises. They further argued the affidavit provided insufficient facts to establish probable cause. After an evidentiary hearing, the trial court determined the search of the curtilage and entry into the home was unconstitutional, but the affidavit contained sufficient facts—not the product of an unconstitutional search—to establish probable cause to search the premises.

{¶ 11} On June 10, 2019, appellant withdrew his not guilty plea, and entered a plea of no contest to the indictment. The trial court accepted the plea, found appellant guilty, and referred the matter for a presentence investigation report. After hearing, the trial court sentenced appellant to 2 years of community control as to each count, with a reserved prison term of 12 months as to Count 1, 36 months as to Count 2, 12 months as to Count 3, and 36 months as to Count 4.

III. Assignments of Error
{¶ 12} Appellant now appeals the trial court’s denial of the motion to suppress,

asserting the following assignments of error:
1. The Trial Court erred in denying Appellant’s Motion to Suppress because mere smell of raw marijuana does not provide sufficient probable cause to support the issuance of a search warrant.

2. There was not sufficient probable cause for the issuance of a search warrant, thus all evidence obtained as a result of the execution of the search warrant must be suppressed.

3. Appellant’s trial attorney’s failure to request a hearing pursuant to Franks v. Delaware [438 U.S.154, 98 S.Ct.2674, 57 L.Ed.2d 667 (1978)] as a result of the false statements and material omissions in the search warrant affidavit was ineffective assistance of counsel.

The legal analysis of the case continues [HERE]