The Utah Supreme Court just issued a surprisingly rational decision. From The Salt Lake Tribune [2]:
The odor of burning marijuana is insufficient to allow police to enter a residence without a warrant, the Utah Supreme Court ruled Friday.
In a 4-1 decision, the court said only a limited number of circumstances create an exception to the warrant requirement, such as preventing the imminent destruction of evidence. Smelling pot is not one of them, the ruling says.
"The aroma of marijuana must be accompanied by some evidence that the suspects are disposing of the evidence, as opposed to casually consuming it," Justice Ronald Nehring wrote for the majority.
With this finding, Utah rejects U.S. Supreme Court precedent holding that the smell of burning marijuana justifies home searches without a warrant in order to prevent destruction of evidence.
It's truly one of the most insultingly absurd drug war exceptions to the constitution. People burn marijuana for fun and not to dispose of evidence. There's nothing more ridiculous than the notion that someone would burn marijuana for the sole purpose of destroying it, even though they don’t know there are police nearby. We know why people burn marijuana and every judge who has upheld this laughable precedent is a liar.
Of course, marijuana laws being what they are, no one reasonably expects police to ignore apparent criminal activity. If officers believe there's marijuana inside a residence, they may seek to obtain a warrant just as they would in any other situation. That's the whole point of the 4th Amendment's warrant clause.
For too long, marijuana smoking has triggered an exception to the warrant clause that doesn't arise with regards to far more severe crimes. It's true that marijuana smoking does inherently destroy evidence, but if there's nothing left by the time a warrant is obtained, it probably wasn't worth the trouble.
Utah's justices deserve credit for their integrity, but this is also an unpleasant reminder that judges around the country continue to regard marijuana smoke as an automatic 4th Amendment waiver.