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State v. Kazmierczak

The presence of an odor of marijuana emanating from a specified location may be the sole basis for the issuance of a search warrant if the affidavit for the warrant contains sufficient information for a magistrate to determine that the officer who detected the odor is qualified to recognize the odor as marijuana.

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Peter Joseph Kazmierczak was charged by accusation with possession of marijuana with intent to distribute and manufacturing marijuana OCGA § 16-13-30 j 1. Kazmierczak filed a motion to suppress the evidence, contending that the search of his residence was illegal because it was conducted under a search warrant that was issued solely based upon the strong odor of marijuana that police detected when they visited the home. The trial court granted the motion to suppress in reliance on precedent from this Court which supported the defendant’s position. The State appeals, contending that our previous rulings were incorrect to hold that the detection of odor of drugs alone could not provide a legal basis for the issuance of a search warrant. Because we agree, we reverse and remand this case to the trial court.

Viewing the evidence in the light most favorable to uphold the trial court’s findings and judgment, Henson v. State, 314 Ga. App. 152, 153 723 SE2d 456 2012, the record shows that on February 6, 2013, law enforcement officers assigned to the Marietta-Cobb-Smyrna Narcotics Unit went to Kazmierczak’s residence to conduct a “knock and talk” after receiving a complaint that the residence was being used to manufacture marijuana. While three of the officers remained out of sight, two of the officers approached the house and knocked on the front door. An adult female came to the door and told the two officers to go to the garage, and they complied.

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