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Covey v. Assessor of Ohio Cty. - 666 F. App'x 245 (4th Cir. 2016)

Rule:

We have repeatedly held that the odor of marijuana alone can provide probable cause to believe that marijuana is present in a particular place.

Facts:

Two data collectors for the Ohio County Assessor, approached the house of the plaintiffs (Coveys). The data collectors knocked on the front door, but nobody answered. Then they went around to the back of the house, where the Coveys have a patio under a deck with a sliding-glass door. Again the assessors knocked, but nobody answered. In the patio area, the assessors noticed what appeared to be marijuana on a workbench, in a dehydrator, and in various containers. Christopher Covey testified that the marijuana was in a green plastic container and a container with a clear lid, which were both sitting in an open blue, plastic bin under the workbench. The data collectors called the sheriff's department and gave them a tip about the marijuana. The officers saw marijuana on Covey's workbench and could smell the odor of marijuana. They handcuffed Covey and Corporal Espejo approached the workbench, observing marijuana on the workbench, in a dehydrator, in an opaque plastic container, and in an open plastic container. Defendants do not dispute that Manchas and Espejo smelled marijuana and saw it on the patio workbench when they exited their vehicle and walked toward Covey. The odor of marijuana provided probable cause to believe that marijuana was present, and justified a search of the curtilage.

Issue:

Did the district court err when it ruled that the policemen did not conduct an illegal search?

Answer:

No

Conclusion:

The records reveal, particularly the photographs produced in discovery that clearly show that the patio was visible from the driveway, lead the appellate court to conclude that there is no genuine dispute that the officers could see the patio as they approached the house. Both officers attested that they saw Covey at the patio as they drove up the driveway. Covey's testimony that this was not possible because he would have heard the vehicle approaching if he had been outside at the time was speculative, as he acknowledged that he walked in and out of the patio door frequently during the relevant time period. His testimony does not create a dispute of material fact on this point. Thus, while the exact point at which the officers saw Covey is disputed, there is no evidence that they did not see him prior to stepping off of the driveway and approaching the patio.

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