                                   WHOLE COURT

                    NOTICE: Motions for reconsideration must be
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                               http://www.gaappeals.us/rules/


                                                                     March 30, 2015




In the Court of Appeals of Georgia
 A14A2046. THE STATE v. KAZMIERCZAK

      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 SE2d 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.

                                         2
      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

      1
        Although three other officers conducted a protective sweep of the residence
while they were waiting for the search warrant to be issued, those officers were not
involved in the warrant application process nor did they supply any information that
was used in the affidavit for the search warrant.
      2
         When the officers executed the search warrant, they found several hundred
grams of raw marijuana in bags or containers inside the residence, as well as two
marijuana plants in the garage. In one room of the house, officers also found a
ventilation hole cut in the ceiling and various pieces of equipment that could be used
to facilitate a marijuana growing operation.

                                            3
      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 SE2d 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


                                           4
      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.

      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 SE2d 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). We further acknowledged that, while odors alone cannot authorize a


                                            5
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 SCt 367, 92 LEd 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 SE2d 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.

      In Patman v. State, 244 Ga. App. 833 (537 SE2d 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. In our analysis of that


                                           6
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. 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). 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 SE2d 494) (2002). In this case, we


      3
        In support of this finding, we cited Clare, supra, which held that odor of
marijuana, by itself, does not justify a warrantless search of a residence. Patman,
supra at 835, n. 16.

                                           7
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 SE2d 351) (2002), citing Patman, supra; State v. Charles, 264 Ga. App.

874, 876 (2) (592 SE2d 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 home.4

Eventually, this principle, that the presence of odors is merely one factor that should

be considered along with other factors in determining whether under the totality of

the circumstances probable cause exists to authorize the issuance of a search warrant,5

evolved into a pronouncement that there must be more than just the smell of the drugs


      4
        We found important that there was no averment that the odor of burnt
marijuana was emanating from anywhere other than the defendant’s person, that he
had recently exited the house, or that the marijuana was there or had recently been
burned at the house.
      5
       See Boldin v. State, 282 Ga. App. 492, 495 (2) (639 SE2d 522) (2006), citing
Charles, supra, Shivers, supra, and Fossett, supra; Martinez-Vargas v. State, 317 Ga.
App. 232, 237 (1) (730 SE2d 633) (2012), citing Pando, 284 Ga. App. 70 (643 SE2d
342) (2007), Boldin, supra, and Fossett, supra.

                                          8
to justify the issuance of a search warrant. State v. Pando, 284 Ga. App. 70, 76-77 (2)

(a) (643 SE2d 342) (2007) citing Charles, supra and Patman, supra. Thus, our

misapplication of the law was complete.

      This faulty premise has had the effect of establishing two different standards

for probable cause based on the presence of distinctive odors – one standard for a

warrantless search of a vehicle where the presence of such odors alone would be

sufficient probable cause, see Folk, supra, and another, more stringent standard for

the issuance of a search warrant where the presence of such odors alone would be

insufficient to establish probable cause, see Shivers, supra and its progeny. This

double standard violates the well established principle that a warrantless search of a

vehicle under the automobile exception must be based on the same degree of probable

cause that would otherwise be sufficient for the issuance of a search warrant. See

California v. Carney, 471 U. S. 386, 394 (III) (105 SCt 2066, 85 LE2d 406) (1985)

(The validity of a warrantless search under the automobile exception is determined

according to the same standard used by a magistrate in deciding to issue a search

warrant, “only the prior approval of the magistrate is waived; the search otherwise

must be such as the magistrate could authorize”) (punctuation and citation omitted.);

United States v. Ross, 456 U. S. 798, 809 (II) (102 SCt 2157, 72 LE2d 572) (1982)


                                          9
(A warrantless search under the automobile exception based on probable cause “is not

unreasonable if based on facts that would justify the issuance of a warrant”) (footnote

omitted). Accord State v. Lejeune, 276 Ga. 179, 183 (2) (576 SE2d 888) (2003). As

the law in Georgia is clear that the odor of marijuana alone may constitute sufficient

probable cause to justify a warrantless search of a vehicle, Folk, supra, it follows that

such an odor alone would likewise be sufficient to justify the issuance of a search

warrant.

      Notably, there are a number of decisions from federal and other state

jurisdictions holding that the odor of marijuana by itself can provide sufficient

probable cause for the issuance of a search warrant. See U. S. v. Friskey, 2014 WL

6698807, *1 (II) (6), *6 (III) (F) (E.D. Ky.), decided November 26, 2014 (strong odor

of marijuana inside residence was, by itself, a sufficient basis for issuance of search

warrant); United States v. Charles, 29 Fed. Appx. 892, 895-896 (II) (3rd Cir. 2002)

(odor of growing marijuana that was noticeable when the defendant opened the door

by itself provided probable cause for issuance of search warrant); United States v.

Elkins, 300 F.3d 638, 659 (VI) (6th Cir. 2002) (odor of marijuana could be sufficient

by itself to establish probable cause for a search of a vehicle, and “[t]he same may be

true when marijuana is smelled within a home”) (citations omitted.); State v. Hughes,


                                           10
___ N. C. App. ___, *3-4 (III) (763 SE2d 928) (2014) (odor of marijuana emanating

from residence, standing alone, provided probable cause for the issuance of a search

warrant); State v. Ojeda, 147 So.3d 53, 65 (Fla. Dist. Ct. App., 2014) (finding the

smell of marijuana through an open door was sufficient to establish probable cause

for a search warrant); State v. Roman, 103 So.3d 922, 925-926 (Fla. Dist. Ct. App.,

2012) (same); State v. Pereira, 967 So.2d 312, 314 (Fla. Dist. Ct. App., 2007)

(anonymous tip coupled with officers’ detection of marijuana odor emanating from

residence provided sufficient probable cause to support the issuance of a search

warrant); State v. Watts, 801 N.W.2d 845, 854 (III) (B) (Iowa 2011) (odor of

marijuana emanating from apartment provided sufficient probable cause for the

issuance of a search warrant); State v. Cole, 906 P.2d 925, 941 (2) (128 Wash.2d 262)

(1995) (smell of growing marijuana, by itself, sufficient to establish probable cause

for search warrant); State v. Olson, 869 P.2d 110, 114-115 (I) (A) (73 Wash. Ct. App.

348) (1994) (odor of marijuana emanating from building and mobile home was, by

itself, sufficient to constitute probable cause for search warrant). Suffice it say, we

find these authorities persuasive.

      Based on the foregoing cases, it appears to be widely accepted in numerous

jurisdictions that a trained police officer’s detection of the odor of raw marijuana can


                                          11
be the sole basis for the issuance of a search warrant, and we see no legitimate reason

why Georgia should refrain from following this rationale. A magistrate would still be

required to consider “all the circumstances set forth in the affidavit[,]” see Palmer,

supra at 77, in determining whether probable cause exists to issue a search warrant

based on the presence of such an odor. Specifically, the magistrate could consider

whether the affidavit establishes that the officer was qualified to recognize the odor

based on his or her training and experience, whether the officer was able to determine

the particular location where the odor was originating from, and whether the officer

detected the odor from a place where he or she was legally entitled to be.

Accordingly, we see no reason to adhere to the premise that an odor of marijuana is

insufficient to justify the issuance of a search warrant. Indeed, the presence of odors

may be “evidence of the most persuasive character[,]” Johnson, supra at 13 (I), and

it would be reasonable for a trained police officer to infer from his detection of the

distinctive odor of raw marijuana emanating from a particular place that marijuana

will be found in that place. See McClain v. State, 267 Ga. 378, 388 (11) (477 SE2d

814) (1996) (“An officer’s inference that items sought will be at the place to be

searched requires no more than ‘a fair presumption’ to be reasonable”) (citation

omitted).


                                          12
      For the above reasons, we hold that if the affidavit for the search warrant

contains sufficient information for a magistrate to determine that the officer who

detected the odor of marijuana emanating from a specified location is qualified to

recognize the odor, the presence of such an odor may be the sole basis for the

issuance of a search warrant. See Johnson, supra at 13 (I); Clare, supra. To the extent

that our holdings in Patman v. State, 244 Ga. App. 833 (537 SE2d 118) (2000),

Shivers v. State, 258 Ga. App. 253 (573 SE2d 494) (2002), State v. Fossett, 253 Ga.

App. 791 (560 SE2d 351) (2002), State v. Charles, 264 Ga. App. 874 (592 SE2d 518)

(2003), Boldin v. State, 282 Ga. App. 492 (639 SE2d 522) (2006), and Martinez-

Vargas v. State, 317 Ga. App. 232 (730 SE2d 633) (2012), could be interpreted as

support for the premise that the odor of raw marijuana emanating from a particular

location cannot be the sole basis for the issuance of a search warrant for that location,

such interpretations are hereby disapproved. To the extent that, State v. Pando, 284

Ga. App. 70 (643 SE2d 342) (2007), holds that the presence of odors can never be the

sole basis for the issuance of a search warrant, it is overruled.

      Judgment reversed and case remanded. Andrews, P. J., Barnes, P. J., Miller,

Dillard, McFadden, Boggs, Branch, McMillian, JJ., concur. Doyle, P. J., Concurs

specially and in the judgment. Phipps, C. J., and Ellington, P. J., dissent.


                                           13
 A14A2046. THE STATE v. KAZMIERCZAK.



      DOYLE, Presiding Judge.

      I concur specially and in the judgment. I agree with the majority that this case

should be reversed because the affidavit for the search warrant contained sufficient

information for the issuance of a search warrant based upon “a strong[],

overwhelming odor of raw marijuana” smelled by the officers upon entering the

residence. I also agree with the majority that State v. Pando1 should be overruled.

Nevertheless, I write specially because I do not agree that it is necessary to

disapprove the other cases cited by the majority.




      1
          284 Ga. App. 70, 76-77 (2) (a) (643 SE2d 342) (2007).
 A14A2046. THE STATE v. KAZMIERCZAK.



      PHIPPS, Chief Judge.

      I believe that the majority has improperly disapproved and/or overruled

Georgia case law. I further believe that, when the circumstances underlying this case

are viewed under standards recently reiterated by the Supreme Court of Georgia and

under Georgia’s long-established and sound rule that the odor of marijuana is a factor

to be considered amongst the totality of the circumstances when determining whether

probable cause existed, the trial court correctly ruled on the suppression motion. For

these, and other reasons set forth below, I dissent.

      In State v. Palmer,1 the Supreme Court of Georgia reiterated the standards

applicable to various levels of judicial scrutiny involved in the warrant process:

      The magistrate’s task in determining if probable cause exists to issue a
      search warrant is simply to make 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


      1
          285 Ga. 75 (673 SE2d 237) (2009).
      hearsay information, there is a fair probability that contraband or
      evidence of a crime will be found in a particular place.2


“The trial court may then examine the issue as a first level of review”; and the

“appellate courts will review the search warrant to determine the existence of

probable cause using the totality of the circumstances analysis. . . .”3

      Contrary to the majority’s stated basis for disapproving or overruling Shivers

v. State,4 State v. Fossett,5 Patman v. State,6 and State v. Charles,7 these cases do not

hold, nor are they fairly “interpreted as support for the premise that the odor of raw

marijuana emanating from a particular location cannot be the sole basis for the

issuance of a search warrant for that location.” Rather, in accordance with the

standards reiterated in Palmer, these cases were decided under Georgia’s long-

established and sound rule that the odor of marijuana may be considered in



      2
          Id. at 77-78 (citations omitted, emphasis supplied).
      3
          Id. at 78 (citations omitted).
      4
          258 Ga. App. 253 (573 SE2d 494) (2002).
      5
          253 Ga. App. 791 (560 SE2d 351) (2002).
      6
          244 Ga. App. 833 (537 SE2d 118) (2000).
      7
          264 Ga. App. 874 (592 SE2d 518) (2003).

                                           2
determining whether, under the totality of the circumstances, probable cause existed

to authorize the issuance of a search warrant.8

      Moreover, each of these cases is distinguishable from the instant case. In

Shivers, as the majority acknowledges,9 we explicitly pointed out that there was no

evidence that the odor of marijuana had been emanating from the particular place




      8
         Id. at 876 (2) (“[T]he odor or marijuana is one factor that may be considered
in determining whether, under the totality of the circumstances, probable cause exists
to authorize the issuance of a search warrant.”) (citations and punctuation omitted);
Shivers, supra at 257 (“The odor of marijuana is one factor that may be considered in
determining whether, under the totality of the circumstances, probable cause exists
to authorize the issuance of a search warrant.”) (footnote omitted); Patman, supra at
835 (“The odor of marijuana is one factor that may be considered in determining
whether, under the totality of the circumstances, an officer had probable cause to
institute a search.”) (footnote omitted); Fossett, supra at 793 (1) (“The odor of
marijuana is one factor that may be considered in determining whether, under the
totality of the circumstances, an officer had probable cause to institute a search.”)
(citation and punctuation omitted).
      9
          Supra at n. 4.

                                          3
sought to be searched.10 Thus, Shivers was correctly decided11 – as the majority

recognizes, a requisite component for a finding of probable cause is a showing of “the

odor of marijuana emanating from a specified location.”12 There is no basis to

disapprove or overrule Shivers, as that case is firmly planted in binding precedent

from this state’s High Court.13

      Nor is there any basis to disapprove or overrule Charles, Fossett, or Patman.

Each case was correctly decided given its underlying facts, and each case is

distinguishable from the instant one.14


      10
         Shivers, supra at 256-257 (citing testimony that police officers “stopped by”
the defendant’s house when “[the defendant] was out at his house and [police
officers] pulled up talking to him”; explaining that “[t]he odor of burnt marijuana on
[the defendant’s] person . . . failed to establish probable cause that marijuana had
been smoked or burned or would be found within Shivers’s house or its curtilage.
There was no averment that the odor of burnt marijuana was emanating from
anywhere other than [the defendant’s] person, that [the defendant] had recently exited
his house, or that marijuana was then or had recently been burned anywhere at his
residence.”) (footnote omitted).
      11
           See Palmer, supra at 77.
      12
           Supra at __ (emphasis supplied).
      13
        See Palmer, supra (requiring “a fair probability that contraband or evidence
of a crime will be found in a particular place”) (citations omitted; emphasis
supplied); Shivers, supra at 254 (same).
      14
        Charles, supra at 876-877 (2) (concerning police officers’ detection of the
odor of marijuana smoke; reiterating that “the smell of marijuana smoke merely

                                          4
      Contrary to the majority’s stated basis for disapproving or overruling Martinez-

Vargas v. State15 and Boldin v. State,16 these cases do not hold, nor are they fairly

“interpreted as support for the premise that the odor of raw marijuana emanating from

a particular location cannot be the sole basis for the issuance of a search warrant for

that location.” Moreover, these cases are distinguishable. Unlike the instant case, both

Martinez-Vargas and Boldin presented for a probable-cause determination the




suggests that marijuana was present in the past”; and noting that the evidence did not
indicate that the odor was strong or that the odor suggested to the officers that
marijuana was being consumed when they arrived; noting that there was no evidence
that the officers detected marijuana smoke on either defendant; or that either
defendant appeared to be under the influence of marijuana); Fossett, supra (holding
that the totality of the circumstances – the officer’s detection of the strong odor of
burning marijuana when he entered the defendant’s residence and the fact that the
officer was familiar with the residents and knew from his own personal experience
that they had recently possessed marijuana and drug trade implements – supported the
magistrate’s finding of probable cause for issuance of a warrant to search the
residence); Patman, supra (explaining that the “[police officer] smelled marijuana on
[defendant], which gave rise to reasonable suspicion that he had recently smoked
marijuana. [Police officer] then patted [defendant] and felt what he believed to be
packages of marijuana in [defendant’s] pocket. When he asked [defendant] what was
in the pocket, [defendant’s] request to ‘let [him] slide’ suggested that he had
something incriminating in his pocket. Taken together, the circumstances established
probable cause to search [defendant].”).
      15
           317 Ga. App. 232 (730 SE2d 633) (2012).
      16
           282 Ga. App. 492 (639 SE2d 522) (2006).

                                           5
presence of an odor, together with other evidence;17 and both cases correctly applied

the law to their underlying facts.18

      Contrary to the majority’s stated basis for disapproving or overruling State v.

Pando,19 that case contains no such broad, per se holding that “the presence of odors

can never be the sole basis for the issuance of a search warrant.”20 That case made no



      17
         Martinez-Vargas, supra at 238 (1) (explaining that the fact that the officer
was standing in close proximity to the residence when he smelled the raw marijuana,
coupled with the drug evidence found in the trash two days earlier, was sufficient to
establish probable cause to search the residence); Boldin, supra at 493-495 (2)
(concluding that the trial court correctly ruled that officer had probable cause to
suspect that contraband was inside the defendant’s residence, where upon officer’s
exit of his car approximately 20 feet from the threshold of the defendant’s open
garage door, the officer immediately smelled the odor of burning marijuana, which
smell became stronger as the officer walked toward the garage door; where the
defendant then “scooped up a trash bag off the floor in his arm and took off running
into the house and slammed the door”; and where some items then fell out of the
garbage bag onto the floor, including a gallon zip-loc bag that appeared to contain
marijuana residue).
      18
          Martinez-Vargas, supra at 237(1) (“While the odor of marijuana alone might
be insufficient to provide probable cause for the search of a residence, it can serve as
one of the factors, under the totality of the circumstances, that will support a finding
of probable cause.”) (citations omitted); Boldin, supra at 495 (2) (“Although the odor
of marijuana may not suffice by itself to provide probable cause for the search of a
residence, the odor of burning marijuana is one of the factors which, under the totality
of the circumstances, will support a finding of probable cause.”) (footnotes omitted).
      19
           284 Ga. App. 70 (643 SE2d 342) (2007).
      20
           Supra at __ (emphasis supplied).

                                           6
attempt to predict any and all possible future sets of circumstances. Instead, it

expressly invoked the rule that the odor of marijuana is to be considered amongst the

totality of the circumstances.21 Pando, like all the other cases, was correctly decided

using the totality of the circumstances analysis.22

         Because Shivers, Charles, Patman, Fossett, Boldin, Martinez-Vargas, and

Pando did not make the holdings ascribed to them by the majority, because they

correctly invoked the applicable standards and principles, because they analyzed their

respective underlying circumstances to reach a correct result, and/or because they are

readily distinguishable from the instant case and thus not implicated here, there is no

proper basis for disapproving or overruling them. “[T]he rule of stare decisis is a

wholesome one.”23 While “stare decisis should not be applied to the extent that an

error in the law is perpetuated,”24 the majority has pointed to nothing constituting an


         21
         Pando, supra at 76-77 (2) (a) (“[T]he odor of marijuana may be considered
as part of the totality of circumstances in determining whether there is sufficient
probable cause to support a search warrant.”) (citation omitted).
         22
              Palmer, supra.
         23
        Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009) (citations and
punctuation omitted).
         24
              Smith v. Baptiste, 287 Ga. 23, 25 (1) (694 SE2d 83) (2010); see Harper,
supra.

                                            7
erroneous statement of the law of Georgia. I cannot go along with disapproving

and/or overruling Georgia’s case law in such manner.

      Furthermore, I believe that the holding articulated today by the majority – “[I]f

the affidavit for the search warrant contains sufficient information for a magistrate to

determine that the officer who detected the odor of marijuana emanating from a

specified location is qualified to recognize the odor, the presence of such an odor may

be the sole basis for the issuance of a search warrant.”25 – goes astray from well-

established standards applicable to various levels of judicial scrutiny involved in the

warrant process.26 Moreover, it can only convolute the longstanding and sound rule

of law that the odor of marijuana be considered amongst the totality of the

circumstances when undergoing a probable-cause analysis.

      The circumstances presented by this case – when considered under the

standards reiterated in Palmer27 and under Georgia’s long-established rule concerning

      25
           Supra at __.
      26
         See, e.g., Palmer, supra at 77 (“The magistrate’s task in determining if
probable cause exists to issue a search warrant is simply to make 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.”) (citations and punctuation omitted).
      27
           Supra.

                                           8
the odor of marijuana – show that the trial court did not err in concluding that the

averment that officers had detected the odor of raw marijuana emanating from the

residence did not establish probable cause for the issuance of a warrant to search the

residence.28 As the majority concedes, “[t]he trial court granted the motion to suppress

in reliance on precedent from this Court which supported the defendant’s position.”29

       Neither the federal cases cited nor the state cases cited by the majority control

this issue in Georgia.

      For these reasons, I dissent.

      I am authorized to state that Presiding Judge Ellington joins in this dissent.




      28
          See Pando, supra at 77 (2) (“[L]one statement that the officers smelled
[fresh] marijuana when the defendants opened the door was insufficient to establish
probable cause for a search warrant for [defendant’s] residence.”) (citation omitted);
see generally Davis v. State, 262 Ga. 578, 584 (4) (422 SE2d 546) (1992) (neither
criticizing the police, nor praising the appellant; rather, “acknowledg[ing] the right
of privacy in one’s home”).
      29
           Supra at __ (emphasis supplied).

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