This сase concerns the Fourth Amendment and specifically whether an officer’s smelling of a legal substance is sufficient in itself to show probable cause for a search warrant or to justify a good-faith exception for a warrant’s issuance. Appellant Lisa Bennett brings this аppeal after entering her conditional plea of guilty to a reduced charge of attempt to manufacture a controlled substance.
The search at issue ensued on October 28, 1998. At 1:30 a.m., Bradford Police Officer Steve Strayhorn was driving along State Highway 367 in White County when he passed a storage building and smelled a strong chemical odor emitting from the building. Strayhorn contacted State Police Investigator Roger Ahlf and Drug Task Force Investigator Robert Parsons, who both arrived on the scene about 3:00 a.m. Ahlf determined the smell was denatured alcоhol, a legal substance, which he described as “extremely strong and in an unstable condition.” The officers contacted the building’s owner, Nathan Bennett, who said that his daughter, Lisa Bennett, had items stored in the building, and she would have to consent to any search. Lisa was contacted аnd showed up at the building, but she refused the officers’ request to search. 1
Investigator Ahlf then went to Searcy to prepare a warrant, while other officers secured the Bennetts’ building. When Ahlf returned to the building at 4:30 a.m., Lisa again refused entrance. Ahlf then swore out an affidavit for a search warrant, and appeared before Searcy Municipal Judge Leroy Froman, who found probable cause for the issuance of a warrant. The officers executed the search warrant at about 7:30 a.m.; the search turned up a number of items that could be usеd in the manufacturing of methamphetamine. Lisa was subsequently arrested.
After being charged, Lisa moved to suppress the evidence seized from the building, arguing that the smell of the legal substance of denatured alcohol, by itself, was insufficient to support Municipal Judge Froman’s finding of probable cause. At a hearing before the circuit court, the court agreed with that part of Lisa’s argument that probable cause had not been shown, but even so, the court held the search was valid under the good-faith exception established in United States v. Leon,
Before addressing the circuit court’s Leon ruHng and Lisa Bennett’s contention that the lower court erred in applying that ruling, we take up the State’s argument that the circuit court was wrong to suggest probable cause was not shown; in fact, the State submits that probable cause did exist to support Ahlfs search warrant. The State’s argument is without merit.
Both the State and Lisa Bennett cite the singular case of United States v. Tate,
While the State appears to disagree with the circuit court’s ruling here, which, as in the Tate cases, held probable cause could not be established by an offiсer’s smell of a legal substance itself, it has done little to show that ruling to be erroneous. The State cites only four cases in response, and those cases all concern warrants issued to officers who had smelled unlawful substances. United States v. Ventresca,
Our court applies the totality of the circumstances analysis when determining whether the issuing magistrate had a substantial basis for concluding that probable cause existed. Fouse v. State,
The determination of probable cause is based upon factual and practical considеrations of everyday life upon which ordinary men, not legal technicians, act. A nontechnical approach correctly balances the competing interests of the individual and society, so that law enforcement officers will not be hampered, nor law аbiding citizens left to the mercy of over-zealous officers. In making the determination of probable cause, we are liberal rather than strict.
Williams,
As already noted, the State has not furnished us with any precedent which has sanctioned the issuance of a search warrant basеd solely on a trained officer’s smell of a legal substance, when that substance has legitimate uses, but also might be used to make an illegal substance. Here, the State is forced to concede that the denatured alcohol Officer Strayhorn and Investigators Ahlf and Parsons smelled had other legal uses. As pointed out by Lisa Bennett, to uphold the search in the circumstances of this case would open the door to the issuance of search warrants based simply on an officer’s smell of a noncontraband substance. For example, a businеss and building where denatured alcohol is kept to strip or refinish furniture could be subject to search. Certainly, the circumstance of smelling denatured alcohol, without other factors, would not cause a cautious man to believe a crime has been committed, nor should thе mere storage of denatured alcohol subject a law abiding citizen to the mercy of an over-zealous officer. Once again, the only evidence presented here was that officers smelled unstable denatured alcohol, and that the smell lingered during a three-hour period before the officers sought a warrant.
Finally, because we agree with the circuit court’s ruling that the smell of denatured alcohol alone was insufficient to support a finding of probable cause, we now must consider and decide whether the lower court was correct to determine that the evidence seized as a result of the search can still be admissible under the good-faith exception established in Leon. The Court in Leon wrote that “[i]f the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence should be suppressed only if it can be said that the law-enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.”
This court has on several occasions discussed the four errors, noted in Leon, which an officer’s objective good faith cannot cure. These errors occur (1) when the magistrate is misled by information the affiant knew was false; (2) if the magistrate wholly abandons his detached and neutral judicial role; (3) when the affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) when a warrant is so facially deficient thаt the executing officers cannot reasonably presume it to be valid. Leon,
In Herrington, supra, this court held that sufficient information must be presented to the magistrate to allow that official to ascertain probable cause; his action cannot be a mere ratification of the bare conclusions of another. Herrington,
Here, Investigator Ahlf prepared his affidavit for search warrant based solely оn the smell of denatured alcohol. The remaining “facts” asserted in his affidavit are no more than bare, conclusory statements with no support to be drawn from the surrounding circumstances. For example, the warrant noted Investigator Ahlfs assertion that he “had reason to beliеve” that Lisa Bennett’s storage shed contained items such as records of drug sales, methamphetamine recipes, scales, plastic bags, syringes, pipes, anhydrous ammonia, sulfuric acid, and other such items. However, the State conceded at oral argument that nonе of those other items were apparent to Investigator Ahlf at the time he obtained the search warrant. Because probable cause for a search warrant must exist at the time the warrant is issued, Gilbert v. State,
Bennett also raised a second point on appeal, namely, that the officer’s refusal to let her or her fathеr enter the storage building until Investigator Ahlf could obtain a search warrant amounted to an unlawful seizure. However, in light of the fact that this case must be reversed, we need not reach this second issue.
For the foregoing reasons, Bennett’s motion to suppress should have been grаnted, and we hereby reverse and remand for entry of an order consistent with this opinion.
Notes
At oral arguments, the State attempted to argue that Bennett’s refusal to consent to the search of her property somehow contributed to Investigator Ahlf s determination that probаble cause existed. However, the State conceded that it had no authority to support this contention.
For example, the police had conducted extensive surveillance on the property, the defendants involved had been engaged in suspicious activity, and the police had received several anonymous phone calls about the situation.