*1 of the stat- authority purpose bypass jury where go directly grand to the
ute a decision to know is easier obtain it which proceeding it is in a than
prosecute have with- for the
the witnesses State of cross-examination. probing
stand legislature corrects the fear unless
deficiency in most instances noted ability as to doubt
which ruling a favorable to obtain
the State magistrate, particularly if is some part prosecution
propensity some of the evi-
conceal from the defense for- upon going which reliance for
dence based, the prelimi- prosecution
ward with legislature by the
nary hearing envisioned exception only in available
will become exigencies
those cases of an ar- make the issuance
circumstances mandatory.
rest warrant always be al-
While a defendant should preliminary waive as a
hearing, is available in some cases if it against prosecution, unwarranted
shield It now is not. be available all.
should Farr, Chattanooga, plaintiff- Jesse 0. HICKS, Russell in-error. Gen., Ashley,'Jr., Atty. R. A. Michael E. Tennessee, Defendant-in-Error. Gen., Nashville, Stephen Asst. Terry, Atty. Evans, J. Asst. Dist. Bevil and Thomas M. Gen., Chattanooga, for defendant-in- Attys. error. 1, 1976. March OPINION
WALKER, Presiding Judge. below, Hicks, ap- Russell in case no. peals in error from his conviction *2 873 possessing marijuana On the 125572for and from floorboard near the accelerator he his conviction in case no. 125563for unlaw- found the .25 pistol loaded caliber involved he fully carrying a In each case was in the conviction for carrying weapon pay sentenced to a fine of and costs the here. On hood cover $1000 between the front seats, days jail. and to serve 11 months and 29 in pipe there was a warm with the odor case, marijuana In the one Linda I. Slater emanating from its bowl. jointly indicted with him for possessing emptied The officer tray the ash and found sell, (the marijuana with intent to but he topless “roaches” there. In a box behind defendant) seat, alone charge. was tried on this the driver’s the officer found a cases, In his consolidated trial of four pistol, loaded .32 caliber holster, a shoulder guilty pistol found him in another plastic bag some in a and some carrying case and another case charging pills. A state testified the ma- possession with felonious him plastic bag terial .as trolled residue, intent sell. pipe the ash residence and cigarette four hand-rolled butts. m., 6,1973, May 5:00 a. about Chatta- nooga policeman Paul O’Rear The defendant testified that he had bor- in a blue and white van turn off rowed the Randy van from one Roberson King Market into barely Street Street mak- while his own being repaired car was ing light. The van accelerated and he nothing knew of the drugs pistols or bounced into another lane. The officer fol- found in it. He saw pipe on the hood turning lights on his blue and sound- but did not know for what it was used and ing his siren several times. In about three he marijuana. noticed no odor of The de- blocks, the van went through light red fendant contends the pipe was over the stop sign and a finally stopped engine car’s and this accounts for half a city jail. block from the warmth. Another witness corroborated the defendant’s of his borrowing approached
O’Rear the vehicle from Roberson who was dead at asked him raise his hands. the time of the trial. When the defendant did not do so immedi- ately, pistol O’Rear drew his and ordered principal question presented is the the defendant to his hands where they legality of the warrantless search. The de- could be He seen. also asked the defendart fendant contends there was no get out of the van. When the defendant cause for it and that a warrant was neces- so, did not do opened the door sary. him out. Although the officer did testify opened door, When the officer défendant, what offense he arrested the smelled the odor of Outside the is clear that the defendant had violated defendant, he searched the traffic laws and that he was lawfully cuffed sent jail him and him to the in the stopped for that reason. When defend- custody of another officer. This personal ant was uncooperative getting out no revealed contraband so far as the van, the opened officer properly the door. record shows. The defendant had about The trial held that the officer was in cash which he he had $1000 obtained qualified recognize the distinctive odor of a loan from bank. marijuana smoke. The woman passenger was taken out of van, placed in a cruiser and principal question presented (cid:127) by a policewoman. marijua here whether or not the smell of sending jail, na defendant’s car fur complete made a O’Rear search of the van. officer, nished cause to enable an 874 v. Rothberg, States for a traffic 480 F.2d stopped the vehicle
who had
cert, denied,
We hold
S.Ct.
offense,
the vehicle.
to search
Moore, Cir.,
L.Ed.2d
States v.
United
that it did.
Gaines,
and United
States
actions, prior to the
the officer’s
Since
Cir., 489
F.2d
*3
odor of the contraband
time he smelled the
accordingly
We
hold that
sativa
cannabis
marijuana, were
the smell of
permissible,
L
geographical types
includes all
mari-
of
probable cause
be-
marijuana established
juana and
assignment.
overrule this
a crime other than
traffic
lieve that
The
had been committed.
detec-
violation
With
by
the evidence admitted
marijuana was
odor of
sufficient
tion of the
search, there
of
is an abundance
evidence
subsequent
warrantless search
to allow
support
jury
verdicts. The
did not ac
Raymond,
State v.
of
automobile. See
cept
pos
the defendant’s
his
of
58;
116,
v.
Ariz.App.
People
516 P.2d
of the
The
session
374,
512;
Wolf,
Ill.App.3d
304 N.E.2d
assignment
weight
of the evidence
Chestnut,
People
43 A.D.2d
351 N.Y.
v.
overruled.
S.2d
carefully
assign-
We have
examined all
Although the
had been re-
ments of error and
them to be without
find
automobile, exigent cir-
moved from the
merit.
without a
cumstances existed for
v.
warrant. Chambers
are
judgments
The
affirmed.
The failing when the erred in to direct verdict I concur with reluctance in considerable was opinion by colleague, Judge said that substance the lead my Walker, say that it but she was unable this case. proscribed by particular This was apprehended by says the court erred in law. He further Chattanooga officer at police approximately proscribed law charging that the morning o’clock because of just species marijuana of and not canna in which he his vehi- operating manner was sativa L. bis cle, type a blue white van truck. stopped, an tes- being according to officer’s time this offense timony, cooperative not defendant was to cannabis sativa was defined and limited they when asked to his hands where 52-1409(n), By L. an amendment TCA so could be seen and did not do until L” were deleted from the the words “sativa officer, quite as it prudently was subse- Public Acts (Chapter definition his service revolver quently developed, drew 1974). did from holster. Defendant the term “can- The of whether any effort to dismount from the van when L” of mari- includes all forms nabis sativa so and was from the requested do litigated in the juana increasingly has been At this time the officer. Ap- Courts of courts. The United States an odor that he took to be hold interpreting point the federal statute peal At this two other United States the term all inclusive. See officers arrived. Defendant was into the Honneus, United cuffed taken half block companion station. His female fleeting target for a search. placed taken from the back ble-cause factor still obtained at the sta- car squad until she could tion house and so did the mobility of the female officer. car unless the Fourth per- Amendment amits warrantless seizure of the car and quarrel I have no conduct of the the denial of its use anyone until a officer, although testimo- is secured. In that event there ny why introduced to show defendant had is little to choose in of practical terms subsequent A been arrested. search dis- consequences between an immediate weapons closed two loaded in the vehicle. search without a warrant and the car’s validity necessarily of an arrest is not immobilization until a warrant is obtain- of the to search a car if determinative ed.” cause to make the search. *4 hesitancy to concur is My due concern Under the circumstances existing here with the court decisions which a officers had the vehicle made a officer without immobilized, and occupants its in custody, category warrant within of a reasonable safer, surer, more prac- reasonable and as search in case such we have here. tical course would have been to obtain a magisterial after Assuming, decision on agreeing, without probable cause make the search. of the smell of There odor is little reason in placing the from defendant’s car onus on a furnished police officer, who, though search, may cause for the officer to make the schooled law, fail find from evidence in this case enforcement of the usually “exigent nought judicial circumstances” knows existing which ni- ceties, authorize the would search without a war- cause decision in However, in a ease of rant. Chambers v. this subject nature and then to supra, judicial cited in the lead such a opinion authority, as decision to scrutiny to deter- Supreme our United States Court had this mine if he circumspectly acted in the action say: However, taken by him. appears this to be presently law it is construed and so I “Arguably, preference because of the concur with the conclusion reached in the magistrate’s judgment, only the immo- case. permitted bilization of the car should be obtained;
until a search warrant argu-
ably, only the ‘lesser’ permis- intrusion is magistrate
sible until the authorizes the
‘greater.’ But ‘greater’ which is the and
which the ‘lesser’ intrusion de- is itself a
batable may the answer de- pend variety aon of circumstances. For Douglas Ray STEWART, purposes, constitutional we see no differ- ence between on one seizing hand holding a car presenting before prob- Tennessee, Defendant-in-Error. magistrate able cause issue to a on the other carrying hand out an immediate search without warrant. Given 1975. search,
ble cause to either course is rea- sonable under the Fourth Amendment. Jan. us, On the facts before the blue station wagon could have been searched on the
spot stopped when was since there was
probable cause to search and it was a