Court of Appeals of Indiana | Opinion 20A-CR-981 | December 18, 2020 Page 1 of 16

ATTORNEY FOR APPELLANT

Dylan A. Vigh

Law Offices of Dylan A. Vigh, LLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Josiah Swinney

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jesse R. Bunnell,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 18, 2020

Court of Appeals Case No.

20A-CR-981

Interlocutory Appeal from the 

Greene Superior Court

The Honorable Dena A. Martin, 

Judge

Trial Court Cause No.

28D01-1804-F6-83

Mathias, Judge.

[1] In this interlocutory appeal, Jesse Bunnell challenges the Greene Superior 

Court’s summary denial of his motion to suppress evidence allegedly obtained 

through an unlawful search and seizure of his home. On the unique facts of this 

case, we find that the search-warrant affidavit failed to provide the warrantissuing judge with a substantial basis for its probable-cause determination. 
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Because there was no probable cause to issue the warrant, the search of 

Bunnell’s home was unlawful. 

[2] We reverse.

Facts and Procedural History

[3] Jesse Bunnell rented a home where he lived with Amber Richardson and two 

children. On the afternoon of April 11, 2018, Alexandria Odell called the 

Greene County Sheriff’s Department to request a welfare check at Bunnell’s 

home. Odell told police that her fiancé, Ivan Stetter—who was deployed 

overseas at the time—was receiving text messages from Richardson indicating 

that she had been battered by Bunnell inside the residence.1

[4] Deputy David Elmore responded, and upon arriving at the home, he noticed a 

recreational vehicle (RV) and a jeep parked on the property. Deputy Elmore 

approached the front door and knocked multiple times, but no one answered. He 

then walked toward the back of the house. On the way, he noticed a cable 

running from one of the home’s ground-level windows into the RV. He knocked 

on the RV, but no one answered. Deputy Elmore then continued to the back of 

the home where he noticed two doors: one on the ground level and one at the top 

of exterior stairs. He first knocked on the ground-level door, but again, no one 

answered. So, he proceeded up the exterior stairs to the other door. 

1 Richardson is Stetter’s “child’s mother.” Appellant’s App. p. 25.
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[5] At the top of the stairs, Deputy Elmore made two observations. First, he 

noticed “an exterior security camera with wires going into the home through 

the door jam.” Appellant’s App. p. 16. Second, he observed “through [his] 

training and experience the smell of raw Marijuana emitting from the door.” Id.

Meanwhile, Deputy Christopher Anderson had arrived to assist; he also 

“advised through his training and experience [that] he smelled raw Marijuana . 

. . emitting from the door at the top of the exterior stairs.” Id. Deputy Elmore 

knocked on this door as well, but no one answered.

[6] After knocking on the home’s three doors, Deputy Elmore spoke with 

Richardson over the phone and confirmed that she and the children were safe at 

a domestic violence shelter. Deputy Elmore also advised dispatch that he was 

applying for a search warrant “due to the odor of raw Marijuana coming from 

the residence.” Id. at 26. That warrant sought authorization to search the home, 

the RV, the jeep, and a detached garage for “any and all illegal substances and 

paraphernalia associated with illegal substances.” Id. at 15–16.

[7] About eight minutes after submitting the search-warrant affidavit, a judge 

signed off on the warrant but limited its scope to the house. Id. at 17–18. Inside, 

officers found approximately nine pounds of marijuana, multiple marijuana 

plants (in the basement), smoking pipes, syringes, and other drug paraphernalia. 

Deputy Elmore subsequently applied for and was granted a search warrant for 

the RV, where he found additional marijuana. As a result, the State charged 

Bunnell with one count each of Level 6 felony dealing in marijuana, Level 6 
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felony possession of marijuana, Level 6 felony maintaining a common 

nuisance, and Class C misdemeanor possession of paraphernalia.

[8] Bunnell filed a motion to suppress the evidence recovered from the home and 

RV alleging that the search and seizure violated both the Fourth Amendment to 

the United States Constitution and Article 1, Section 11 of the Indiana 

Constitution. More specifically, Bunnell made two claims: (1) the exterior 

stairwell and upstairs door “were not the normal means of entry-or-exit to and 

from” the home, and thus Deputy Elmore’s detection of marijuana “within this 

area” constituted a warrantless search, id. at 36–39; and (2) the search warrant 

was not supported by probable cause because there was no evidence that the 

officers had “the requisite training and experience in detecting the odor of raw 

marijuana emanating from a [h]ome,” id. at 39–42. 

[9] After a hearing, the trial court summarily denied Bunnell’s motion. Burnell filed 

a motion requesting the trial court to certify its denial for interlocutory appeal, 

which the court granted. This court then accepted jurisdiction over the appeal.

Discussion and Decision

[10] Bunnell presents several arguments on appeal, one of which we find dispositive: 

whether the initial search-warrant affidavit supplied the issuing judge with a 

substantial basis for concluding there was probable cause to search his home.2

2 Because we find this argument dispositive, we do not address Bunnell’s other contentions. 
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[11] Both the Fourth Amendment to the United States Constitution and Article 1, 

Section 11 of the Indiana Constitution require search warrants based on 

probable cause. U.S. Const. amend. IV; Ind. Const. art. 1, § 11. This 

constitutional requirement is codified in Indiana Code section 35-33-5-2, which 

specifies the information that must be included in an affidavit supporting a 

search warrant. One requirement is that the affidavit set “forth the facts known 

to the affiant through personal knowledge . . . constituting the probable cause.” 

I.C. § 35-33-5-2(a)(3).

3

[12] In deciding whether there is probable cause, “[t]he task of the issuing magistrate 

is simply to make a practical, common-sense decision whether, given all the 

circumstances set forth in the affidavit . . . there is a fair probability that 

contraband or evidence of a crime will be found in a particular place.” Illinois v. 

Gates, 462 U.S. 213, 238 (1983). In reviewing that decision, our job is to 

determine whether the affidavit provided the warrant-issuing judge with a 

“substantial basis” for finding probable case. Id. at 238–39 (citation omitted). 

And though we afford a probable-cause determination “great deference,” id. at 

236, it “is not boundless,” United States v. Leon, 468 U.S. 897, 914 (1984). We 

must ensure that the judge “perform his neutral and detached function and not 

serve merely as a rubber stamp for the police.” Id. (cleaned up). A warrant 

3 The State argues that Bunnell “has waived his claim that the deputies’ discovery of the raw marijuana smell 

violated Article 1, Section 11 of the Indiana Constitution.” Appellee’s Br. at 20. We do not address this 

argument because we resolve the case on whether the search-warrant affidavit provided the warrant-issuing 

judge with a substantial basis for finding probable cause—the standard for applying Section 35-33-5-2. See 

State v. Spillers, 847 N.E.2d 949, 953 & n.3 (Ind. 2006).
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issued without probable cause is invalid, and thus any subsequent search based 

on the warrant is illegal. Heuring v. State, 140 N.E.3d 270, 273 (Ind. 2020). 

Generally, under the exclusionary rule, any evidence obtained directly and 

derivatively from the illegal search must be suppressed. Id.

[13] Here, Bunnell argues that the initial search-warrant affidavit failed to provide 

the judge with a substantial basis for finding probable cause. More specifically, 

he notes that “the only evidence that supports” probable cause is the deputies’ 

detection of the odor of raw marijuana, which was based on their “training and 

experience.” Appellant’s Br. at 20–21. But because there is no information 

about either deputies’ relevant training or experience in detecting the odor of 

raw marijuana, Bunnell contends that the affidavit is insufficient to establish 

probable cause. He thus asserts that the seized evidence pursuant to both the 

initial search warrant and the subsequently issued warrant must be suppressed. 

The State disagrees, maintaining that “the odor of raw marijuana with an 

identifiable source justified the magistrate’s initial probable-cause 

determination.” Appellee’s Br. at 13.4

4 The State argues in the alternative that, even if the warrant was issued without probable cause, suppression 

is not required because the good-faith exception to the exclusionary rule applies. Appellee’s Br. at 22–23; see

I.C. § 35-37-4-5. Yet, as Bunnell points out, the State raised the exception’s applicability for the first time on 

appeal: it did not file a memorandum in opposition to Bunnell’s motion to suppress, and it did not advance 

an admissibility argument under the good-faith exception at the suppression hearing. Our supreme court has 

held that a party “is limited to the specific grounds argued to the trial court and cannot assert new bases for 

admissibility for the first time on appeal.” Taylor v. State, 710 N.E.2d 921, 923 (Ind. 1999). Thus, because the 

State has raised the good-faith exception as a basis for admissibility for the first time on appeal, any argument 

regarding the exception’s applicability is waived. Moore v. State, 872 N.E.2d 617, 621 n.2 (Ind. Ct. App. 2007)

(citing Merritt v. State, 803 N.E.2d 257, 261 (Ind. Ct. App. 2004)), trans. denied; see Darring v. State, 101 N.E.3d 
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[14] On these unique facts and circumstances, we agree with Bunnell. To explain 

why, we address a narrow issue of first impression: whether law enforcement’s 

detection of the odor of marijuana based on unspecified “training and 

experience” by itself provides a warrant-issuing judge with a substantial basis 

for concluding that probable cause exists to search a home.

A. The odor of marijuana emanating from a residence may be sufficient by itself to 

establish probable cause for issuing a search warrant.

[15] Over seventy years ago, the Supreme Court of the United States declared that 

“the presence of odors” can establish probable cause to issue a search warrant if 

two conditions are met: (1) the issuing judicial officer “finds the affiant qualified 

to know the odor”; and (2) the odor “is one sufficiently distinctive to identify a 

forbidden substance.” Johnson v. United States, 333 U.S. 10, 13 (1948). 

[16] In the years since Johnson, this court has consistently held, beginning with State 

v. Hawkins, 766 N.E.2d 749, 751–52 (Ind. Ct. App. 2002), trans. denied, that 

when a trained and experienced police officer detects the distinctive odor of a 

drug—such as raw or burnt marijuana—coming from a vehicle, the officer has 

probable cause to search that vehicle. See Marcum v. State, 843 N.E.2d 546, 548 

(Ind. Ct. App. 2006); see also Shorter v. State, 144 N.E.3d 829, 838–39 (Ind. Ct. 

App. 2020) (detection of burnt synthetic drugs), trans. denied. Notably, however, 

in each of those decisions law enforcement’s qualifications to detect the odor 

263, 269 (Ind. Ct. App. 2018); United States v. Lara, 815 F.3d 605, 612–13 (9th Cir. 2016); United States v. 

Wurie, 728 F.3d 1, 13–14 (1st Cir. 2013); United States v. Archibald, 589 F.3d 289, 301 n.12 (6th Cir. 2009).
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were either not contested, Hawkins, 766 N.E.2d at 752, or were sufficiently 

established, Marcum, 843 N.E.2d at 548; Shorter, 144 N.E.3d at 839. The same 

was not true in State v. Holley, 899 N.E.2d 31 (Ind. Ct. App. 2008), trans. denied.

[17] In Holley, officers pulled over a vehicle and subsequently searched it after 

detecting “the smell of raw marijuana emanating” from the occupants. Id. at 32. 

The trial court granted Holley’s pretrial motion to suppress the evidence seized 

from the car. Id. at 33. On the State’s appeal, we noted that—unlike in Hawkins

or Marcum—“the qualifications of the officers” to detect the odor “were in 

issue.” Id. at 35. And the lack of evidence for those qualifications was 

dispositive: “While there was evidence that [the officer] had encountered 

marijuana during the course of his duties, there was no evidence that he was 

qualified to know its odor or able to distinguish its odor from that of other 

substances.” Id. Thus, because the search was without probable cause, we 

affirmed the trial court. Id.

[18] Yet, unlike the decisions cited above, this case involves probable cause to issue 

a search warrant for a residence. While we acknowledge that a warrantless 

search of a vehicle must be based on the same degree of probable cause that 

would otherwise be sufficient to issue a search warrant for a residence, see 

California v. Carney, 471 U.S. 386, 394 (1985), there are differences in who 

makes the probable-cause determination and how that decision is later 

reviewed, see, e.g., 2 Wayne R. LaFave, Search & Seizure § 3.1(d) (6th ed. 2020). 

We thus find additional guidance from three Indiana cases that have addressed 

law enforcement’s sense of smell and its impact on probable cause in this 
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context: Johnson v. State, 32 N.E.3d 1173 (Ind. Ct. App. 2015), trans. denied; 

Darring v. State, 101 N.E.3d 263 (Ind. Ct. App. 2018); and Ogburn v. State, 53 

N.E.3d 464 (Ind. Ct. App. 2016), trans. denied.

[19] In Johnson and Darring, this court found that search-warrant affidavits, each of 

which included information about law enforcement’s detection of the odor of 

marijuana, established probable cause to issue a search warrant for a home. 

Johnson, 32 N.E.3d at 1177–78; Darring, 101 N.E.3d at 269–70. Importantly, 

however, the detection of marijuana in each case only supported the probablecause determination: the affidavits included additional evidence to establish 

probable cause. For example, the affidavit in Johnson contained “information 

that illegal drug activity was taking place” at the residence. 32 N.E.3d at 1177. 

And in Darring, the affidavit indicated that officers found two marijuana plants 

by the homeowner’s shed, and it also included incriminating information from 

a neighbor. 101 N.E.3d at 266, 269–70. Further, the affiant–officer listed the 

relevant training and experience of the law-enforcement officials who detected 

the odor of marijuana. Id. at 266. 

[20] In Ogburn, on the other hand, we held that an officer’s detection of the “odor of 

burnt marijuana alone” did not establish probable cause to search an apartment 

for evidence of dealing in controlled substances. 53 N.E.3d at 472–73. The 

panel reached this conclusion after making three observations: (1) there was no 

reported drug activity at the apartment; (2) no one had spoken with anyone at 

the apartment who appeared under the influence of marijuana; and (3) the 
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affiant–officer failed to explain why he believed the odor emanated from 

Ogburn’s apartment, rather than a neighbor’s apartment. Id. at 473. 

[21] Read together, these decisions demonstrate that, while law enforcement’s 

detection of the odor of marijuana can provide sufficient probable cause for a 

search, there is no per se rule giving police carte blanche authority to search—

with or without a warrant—based solely on the odor. Like in Johnson and 

Darring, the odor coupled with other evidence may establish probable cause. Or 

like in Holley and Ogburn, there may be circumstances that undermine the 

otherwise strong inference of implied criminal activity—such as a lack of 

information about law enforcement’s relevant training or experience in 

identifying and distinguishing a particular odor, Holley, 899 N.E.2d at 35; see

Edwards v. State, 832 N.E.2d 1072, 1080 n.11 (Ind. Ct. App. 2005) (recognizing 

that that detection of the smell of marijuana must be “by a trained and 

experienced police officer” to “support probable cause”); cf. Neuhoff v. State, 708 

N.E.2d 889, 891 (Ind. Ct. App. 1999) (finding that a drug-sniffing dog’s alert 

“was sufficient in itself” to establish probable cause when the search-warrant 

affidavit detailed the dog’s relevant qualifications, experience, and training); 

Rios v. State, 762 N.E.2d 153, 159–60 (Ind. Ct. App. 2002) (same); Hoop v. State, 

909 N.E.2d 463, 471 n.7 (Ind. Ct. App. 2009) (same), trans. denied. And this 

lack of information is particularly concerning in cases where detection of an 

odor is the only information in the affidavit “constituting probable cause.” I.C. 

§ 35-33-5-2(c).
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[22] In short, we recognize that the smell of marijuana emanating from a residence, 

when detected by law enforcement that is qualified to identify and distinguish 

the odor, by itself can establish probable cause for issuance of a search warrant.5

But when the smell of marijuana is the only evidence constituting probable 

cause, the search-warrant affidavit—or information otherwise before the issuing 

judge—must include some information regarding the detecting officers’ relevant 

qualifications, experience, or training in identifying and distinguishing the 

odor.6

[23] To conclude otherwise would sanction a categorical presumption that every

law-enforcement official is adequately trained in detecting and distinguishing 

the smell of marijuana. But such a presumption would conflict with Johnson’s 

mandate that a warrant-issuing judge find the “affiant qualified to know the 

odor” to constitute probable cause, 333 U.S. at 13, which must “be decided 

based on the facts of each case,” Figert v. State, 686 N.E.2d 827, 830 (Ind. 1997). 

While we are mindful that search warrants should not be invalidated by 

5

Several decisions from other jurisdictions have reached a similar conclusion. See Commonwealth v. Barr, ---

A.3d ----, 2020 WL 5742680, at *7 (Pa. Sep. 25, 2020); State v. Hubbard, 430 P.3d 956, 969 (Kan. 2018); 

Tingey v. State, 387 P.3d 1170, 1183 (Wyo. 2017); State v. Watts, 801 N.W.2d 845 (Iowa 2011) (collecting 

cases); State v. Kazmierczak, 771 S.E.2d 473, 478–79 (Ga. Ct. App. 2015) (collecting cases); see also LaFave, § 

3.6(b) (“It appears to be generally accepted that the smell of marijuana in its raw form or when burning is 

sufficiently distinctive to come within the rule of the Johnson case.”).

6 We find support for this minimal requirement in decisions from this court, see Holley, 899 N.E.2d at 34–35; 

Neuhoff, 708 N.E.2d at 891, as well as decisions from other jurisdictions, see Poolaw v. Marcantel, 565 F.3d 721, 

732 & n.10 (10th Cir. 2009); Hervey v. Estes, 65 F.3d 784, 790 (9th Cir. 1995); United States v. Sweeney, 688 

F.2d 1131, 1137–38 (7th Cir. 1982); United States v. Pond, 523 F.2d 210, 212–13 (2d Cir. 1975); Watts, 801 

N.W.2d at 855; Davis v. State, 202 S.W.3d 149, 157 (Tex. Crim. App. 2006); State v. Moore, 734 N.E.2d 804, 

808 (Ohio 2000); State v. Cole, 906 P.2d 925, 941 (Wash. 1995); Kazmierczak, 771 S.E.2d at 478; see also

LaFave, § 3.6(b).
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interpreting affidavits “in a hypertechnical, rather than a commonsense, 

manner,” we must also “conscientiously review the sufficiency of affidavits on 

which warrants are issued” to ensure probable cause is not “a mere ratification 

of the bare conclusions of others.” Gates, 462 U.S. at 236, 239. We believe our 

holding today strikes the appropriate balance. 

[24] With these principles in hand, we now turn to the search-warrant affidavit here 

to determine whether it provided the issuing judge with a substantial basis for 

concluding that there was probable cause to search Bunnell’s home. 

B. The affidavit does not demonstrate that the officers were qualified to identify and 

distinguish the odor of raw marijuana.

[25] As noted above, a search-warrant affidavit must set “forth the facts known to 

the affiant through personal knowledge . . . constituting the probable cause.” 

I.C. § 35-33-5-2(c). The purpose of this requirement is “to keep the state out of 

constitutionally protected areas until it has reason to believe that a specific 

crime has been or is being committed.” Berger v. New York, 388 U.S. 41, 59 

(1967). 

[26] Here, the initial search warrant authorized law enforcement to search Bunnell’s 

residence for “any and all illegal substances and paraphernalia associated with 

illegal substances.” Appellant’s App. p. 15. To establish probable cause that 

“illegal substances” would be found in Bunnell’s home, Deputy Elmore’s 

affidavit included the following facts:

I am a Deputy with the Greene County Sheriff’s Department.
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....

I [] observed through my training and experience the smell of raw 

Marijuana emitting from the [second-floor exterior] door.

Deputy Christopher Anderson arrived on scene to assist me and 

advised through his training and experience he smelled raw 

Marijuana as well emitting from the door at the top of the 

exterior stairs.

Id. at 15–16. 

[27] Thus, probable cause to search Bunnell’s home must be established solely by 

the deputies’ detection of the odor. 7 But the affidavit does not include any 

information regarding the deputies’ relevant qualifications, experience, or 

training that demonstrates either deputy can identify or distinguish the smell of 

raw marijuana.8 There is no information on how long either deputy had been in 

law enforcement. There is no information on either deputy’s involvement in 

investigating marijuana offenses or in making marijuana-related arrests. And 

there is no information about specialized training that either deputy had 

7 Deputy Elmore also noted that, at the top of the stairs, he “observed an exterior security camera with wires 

going into the home through the door jam.” Appellant’s App. p. 16. We agree with the State that the 

presence of this camera “could support a reasonable inference that guests had used the backdoor in the past,” 

Appellee’s Br. at 19; yet we find no basis—and the State does not argue—that the presence of a homesecurity camera could also support a finding of probable cause that Bunnell’s home contained “illegal 

substances.”

8 We acknowledge that, during the suppression hearing, the trial court heard information about the officers’ 

specific training and experience in detecting the odor of raw marijuana. Our inquiry, however, is focused on 

whether the warrant-issuing judge had a substantial basis for concluding that probable cause existed—a 

determination that is made based on the information presented at the time the warrant is issued. See, e.g., 

Heuring, 140 N.E.3d at 273 (citing Figert, 140 N.E.3d at 830); United States v. Rees, 957 F.3d 761, 765–66 (7th 

Cir. 2020).
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undergone in detecting the odor of raw marijuana. Simply put, the searchwarrant affidavit is devoid of particular information or evidence from which the 

warrant-issuing judge could find that either Deputy Elmore or Deputy 

Anderson were “qualified to know the odor” of raw marijuana emanating from 

the second-floor door of Bunnell’s residence. Johnson, 333 U.S. at 13; see United 

States v. Ventresca, 380 U.S. 102, 108–09 (1965) (observing that probable cause 

cannot “be made out by affidavits which are purely conclusory, stating only the 

affiant’s . . . belief that probable cause exists without” providing detailed 

circumstances on which the belief is based).

[28] We acknowledge that Deputy Elmore cites both his and Deputy Anderson’s 

“training and experience” generally; and we give “due weight to inferences 

drawn from . . . local law enforcement officers,” Ornelas v. United States, 517 

U.S. 690, 699 (1996). See United States v. Floyd, 740 F.3d 22, 35 (1st Cir. 2014)

(recognizing that “a law enforcement officer’s training and experience may 

yield insights that support a probable cause determination”) (emphasis added). 

Yet, by not including any information about relevant training or experience—

and with no other incriminating evidence or information from which to draw a 

reasonable inference of criminal activity—a judicial officer reviewing the 

affidavit must resort to multiple inferences, resulting in a tenuous rather than a 

substantial basis for finding probable cause. Indeed, if we were to conclude that 

unspecified “training and experience” alone provides the requisite substantial 

basis, we would be granting the three words talismanic qualities. See State v. 

Benters, 766 S.E.2d 593, 603 (N.C. 2014) (finding an affidavit “insufficient to 
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establish probable cause” when concluding otherwise would require “such a 

heavy reliance upon officers’ training and experience”). And in doing so, we 

would be abdicating our role to ensure that warrant-issuing judges do “not serve 

merely as a rubber stamp for the police.” Ventresca, 380 U.S. at 109. This we 

will not do. 

[29] In sum, law enforcement’s detection of the odor of raw marijuana emanating 

from Bunnell’s second-floor door is the affidavit’s sole basis for establish 

probable cause to search the home. Yet, the affidavit does not include any 

information about the deputies’ relevant qualifications, experience, or training 

from which a warrant-issuing judicial officer could find either deputy qualified 

to identify or distinguish the odor of raw marijuana. Thus, the affidavit failed to 

provide the warrant-issuing judge with a substantial basis for its probable-cause 

determination. Because there was no probable cause to issue the warrant, the 

initial search of Bunnell’s home was illegal, and the exclusionary rule requires 

suppression of the evidence seized. Further, “it was by exploitation of that 

illegality” that law enforcement secured a search warrant for Bunnell’s RV. 

Wong Sun v. United States, 371 U.S. 471, 488 (1963). As a result, that evidence 

must also be suppressed. See id.

Conclusion

[30] When probable cause for a search warrant is premised solely on law 

enforcement’s detection of the odor of raw marijuana, the assertion must be 

based on more than personal belief: the affiant–officer must provide some 

information about the detecting officers’ relevant “training” or “experience” 
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that led to the ultimate conclusion. The search-warrant affidavit here failed to 

include that information, and thus, the warrant-issuing judge did not have a 

substantial basis for its probable-cause determination. The search warrant was 

therefore invalid and the subsequent search illegal. As a result, the trial court 

erred when it summarily denied Bunnell’s motion to suppress.

[31] Reversed. 

Altice, J., and Weissmann, J., concur.