PROBABLE CAUSE ON SMELL: DRAKE V. COM. (COA 4/27/2007)

DRAKE V. COM.
CRIMINAL:  Search and seizure (probable cause and smell)
2006-CA-000809
PUBLISHED: AFFIRMING; LAMBERT
DATE RENDERED: 4/27/2007

The defendant Drake entered a conditional guilty plea and appealed the trial court’s denial of his motion to suppress evidence seized pursuant to a search warrant. 

Drake filed a motion to suppress the items seized from his trailer, alleging that the smell of ether and ammonia did not provide probable cause for issuance of the search warrant. After holding a hearing on the motion, the trial court held that there was in fact probable cause but that even if the affidavit did not provide probable cause, the good faith exception would apply and suppression would not be warranted.

Drake subsequently entered a conditional guilty plea. As part of the plea agreement, the second-degree persistent felony offender charge was dismissed, and he reserved the right to appeal the denial of his motion to suppress. He now appeals.

Despite having not addressed this particular issue in Kentucky, many other jurisdictions have held that odor either alone or in conjunction with other facts and circumstances can provide sufficient probable cause.  The conviction was affirmed.

Digested by Michael Stevens

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