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Mr. Cush's Curtilage Not Violated by 'Knock and Sniff'

By William Peacock, Esq. on April 19, 2013 | Last updated on March 21, 2019

Theodore McDowell, known colloquially as “Cush” by his loved ones, was recently convicted of one count of conspiracy to possess with intent to distribute more than 1,000 kilograms of marijuana. Though both Mr. Cush and at least six of his coconspirators all reached the Tenth Circuit, and had opinions released on the same day, he was the only one to receive the distinctive honor of a published opinion — thanks in large part to his curtilage complaint.

In 2007, an alert officer was strolling along West Hubbell Street in Avondale, Arizona, attempting to locate a woman under investigation for assault in Surprise, Arizona (GO ROYALS!). It was the officer that was surprised, however, when his olfactory sense detected a faint hint of fresh, unburned marijuana. Though his nose pointed towards the garage, he approached the front door instead, where the smell was still present, yet far less strong.

He then stepped off the porch and fruitlessly attempted to peer into a window obfuscated by closed blinds. Stymied by the window coverings, he radioed for backup and was joined by other officers, who also detected the odor of marijuana. They followed up with a drug dog, which alerted to a garage vent.

One officer returned to the station to prepare a search warrant application while the others kept watch. When a van left the house with only its parking lights on, the officers stopped the van and detected the odor of marijuana. Inside, remnants of marijuana leaves were stuck to "Saran Wrap-type material", along with axle grease, packing peanuts, and wood chips.

Shortly thereafter, a warrant was issued, a massive stash was located, and somebody snitched. The conspiracy involved packing marijuana into small packages, well-sealed and covered in other materials (axle grease, wood chips) to disguise the smell. The packages would then be shipped to Kansas City (GO ROYALS!).

Mr. Cush's most intriguing argument was that, in light of this year's Florida v. Jardines SCOTUS decision, the nimbus* of his home was violated (by nimbus, he means curtilage).

The court differentiates Jardines from the present case for two reasons: first, the officer detected the smell of marijuana while simply crossing the driveway and walking to the door. These "knock and talk", or in this case, "knock and sniff" investigations do not violate the Fourth Amendment.

Second, in Jardines, a drug dog was brought in before any drugs were detected. Here, multiple officers detected the odor before bringing in a dog. Per the Jardines concurrence, "a human sniff is not a search, we can all agree."

Finally, in regards to the officer's failed peeping-Tom act, it led to no additional evidence. At that point, the smell had already been detected. He saw nothing through the window and any violation that did occur did not lead to additional evidence.

*The court took the time to note that no circuit court in the history of the United States has ever used the term "nimbus" in a Fourth Amendment context. Snarky footnotes are the best footnotes.

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