Plain Smell Does Not Justify Search of Home – State v. Strekis (UNP)

This morning’s UNPUBLISHED Appellate Division decision in State v. Strekis is important in that it provides an excellent overview of the evidence that is necessary for police to undertake a search of a home based upon the so-called “plain smell” doctrine.
Police responding to a burglary in progress entered a home and conducted a sweep. Although the police found evidence of a break-in, no suspects were discovered. Once the property was secured, a detective swept through the home again. During the course of this second search, the detective smelled the strong odor of marijuana. He determined the smell was coming from behind a wall. He searched in the wall and recovered a disorderly persons level amount of marijuana.

The Appellate Division suppressed the evidence, ruling that the plain smell search and discovery of the marijuana is not the same as the plain view exception to the warrant requirement. The detective had to conduct a further search to find the drugs. This search exceeded the bounds for the original justification for the police entry into the home – emergency aid due to the burglary. Moreover, the police were not subject to exigent circumstances and had ample opportunity to apply for a search warrant.

Download a copy of the UNPUBLISHED State v. Strekis

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