If someone testified to a judicial official that they smelled the odor of marijuana coming from an apartment, it would absolutely be enough to establish probable cause for a warrant to search that apartment. See United States v. Harvey, 961 F.2d 1361, 1363 (8th Cir. 1992); See also Horton v. Goose Creek Independent School District, 690 F.2d 470, 477 (5th Cir. 1982); United States v. Barry 394 F.3d 1070 (8th Cir. 2005).
But if they smell marijuana and do NOT get a valid warrant, they cannot use the results of the search, correct?
You are missing my point, I think.
The officer must affirm under oath that they smelled marijuana, prior to executing the search. PRIOR to the search. A smell isn’t enough to perform a warrantless search.
If there is significant precedent that belies that last statement, please correct me. But it is the basis by which the state supreme court threw out the case under discussion, unless I misunderstood the article. Therefore, it appears that the avoidance of proper procedure - that is, proper sequence - is a poison in the well against which the case does not survive.
I believe that people should live within the laws of the land. I believe the police must also do so.