1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 116,398

STATE OF KANSAS,

Appellant,

v.

TYLER REGELMAN,

Appellee.

SYLLABUS BY THE COURT

1.

On a motion to suppress evidence, an appellate court reviews the factual findings 

underlying the trial court's suppression decision using a substantial competent evidence 

standard and the legal conclusion drawn from those factual findings using a de novo 

standard. The court does not reweigh evidence.

2.

The safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 

694, reh. denied 385 U.S. 890 (1966), are triggered only when an accused is (a) in 

custody and (b) subject to interrogation. Custodial interrogation is defined as questioning 

initiated by law enforcement officers after a person has been taken into custody or 

otherwise deprived of freedom in any significant way. A custodial interrogation is 

distinguished from an investigatory interrogation, which occurs as a routine part of the 

fact-finding process before the investigation reaches the accusatory stage.
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3.

Factors to consider in determining if an interrogation is investigative or custodial 

include: (a) the interrogation's time and place; (b) its duration; (c) the number of law 

enforcement officers present; (d) the conduct of the officer and the person questioned; (e) 

the presence or absence of actual physical restraint or its functional equivalent, such as 

drawn firearms or a stationed guard; (f) whether the person is being questioned as a 

suspect or a witness; (g) whether the person questioned was escorted by officers to the 

interrogation location or arrived under his or her own power; and (h) the interrogation's 

result, e.g., whether the person was allowed to leave, was detained further, or was 

arrested after the interrogation. No single factor outweighs another, nor do the factors 

bear equal weight. Every case must be analyzed on its own particular facts.

4.

An appellate court's review of a trial court's determination whether an 

interrogation was custodial has two distinct inquiries. Under the first, the appellate court 

determines the circumstances surrounding the interrogation, employing a substantial 

competent evidence standard of review. In determining if there is substantial competent 

evidence supporting the existence of the circumstances found by the trial court, an 

appellate court does not reweigh evidence, assess the credibility of the witnesses, or 

resolve conflicting evidence. The second inquiry employs a de novo standard of review to 

determine whether, under the totality of those circumstances, a reasonable person would 

have felt free to terminate the interrogation and disengage from the encounter.

5.

When an affidavit supporting a search warrant contains both lawfully and 

unlawfully obtained information, a reviewing court asks whether the affidavit supplied a 

substantial basis for finding probable cause without the unlawfully obtained information. 

If a substantial basis nonetheless existed for finding probable cause, the warrant was valid 

and evidence obtained pursuant to it will not be suppressed.
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6.

Probable cause to support a search can be established if the totality of the 

circumstances indicates there is a fair probability the place to be searched contains 

contraband or evidence of a crime.

7.

The totality of the circumstances surrounding a law enforcement officer's detection 

of the smell of raw marijuana emanating from a residence can supply probable cause to 

believe the residence contains contraband or evidence of a crime. Such circumstances 

include, but are not limited to, proximity to the odor's source, reported strength of the 

odor, experience identifying the odor, elimination of other possible sources of the odor, 

and the number of witnesses testifying to the odor's presence. This is a case-by-case 

determination based on the circumstances. Not all cases relying on odor will have the 

same result.

8.

When reviewing a judge's finding of probable cause to issue a search warrant, the

correct standard of review is more deferential to the issuing judge than the standard 

applied when reviewing a judge's conclusion that probable cause was sufficient to 

support an exception to the Fourth Amendment's warrant requirement. More specifically, 

the standard is whether the evidence provided the issuing judge with a substantial basis 

for determining that probable cause existed.

Review of the judgment of the Court of Appeals in an unpublished opinion filed March 31, 2017.

Appeal from Geary District Court; STEVEN L. HORNBAKER, judge. Opinion filed December 7, 2018. 

Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. 

Judgment of the district court is affirmed in part and reversed in part, and the case is remanded for further 

proceedings.
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Tony Cruz, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was 

with him on the briefs for appellant. 

Amber Cabrera, assistant public defender, of North Central Regional Public Defender's Office, of 

Junction City, argued the cause and was on the briefs for appellee.

The opinion of the court was delivered by

BILES, J.: The State appeals a district court's order suppressing drug-related 

evidence seized during a residential search supported by a warrant. The Court of Appeals 

affirmed the suppression order. State v. Regelman, No. 116,398, 2017 WL 1197135, at *6 

(Kan. App. 2017) (unpublished opinion). We consider: (1) whether Miranda warnings 

were required before the defendant made incriminating statements used to support the 

warrant; and (2) whether the officer's testimony that he detected the smell of raw 

marijuana coming from the residence supported the probable cause for the search 

warrant. We affirm in part, reverse in part, and remand the case to the district court for 

further proceedings.

We agree with the lower courts that Miranda warnings were required under the 

circumstances presented, so the incriminating statements were properly suppressed since 

the warnings were not given before the statements were made. But we disagree with the 

lower courts about the smell of raw marijuana failing to provide probable cause under the

case's facts. See State v. Hubbard, 308 Kan. ___, ___ P.3d ___ (No. 113,888, this day 

decided), slip op. at 24 (holding the totality of the circumstances surrounding a police

officer's detection of the smell of raw marijuana emanating from a residence can supply 

probable cause to believe the residence contains contraband or evidence of a crime).
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FACTUAL AND PROCEDURAL BACKGROUND

Junction City police officers visited Tyler Regelman's home to conduct a welfare 

check after his employer reported him missing. Officer Douglas Cathey later testified he 

could smell raw marijuana while standing at the front door waiting for Regelman to 

answer after the officer rang the doorbell. When Regelman opened the front door, Cathey

testified the marijuana smell became stronger.

Cathey asked questions related to the wellness check and then almost immediately

inquired about the marijuana odor. Regelman denied smelling anything and refused to 

allow the officers inside the house. Cathey then replied, "Okay. Well, what we are going 

to do is, I'm going to apply for a search warrant." Regelman acknowledged this. The 

officer then said, "[I]n the meantime, we're just going to hang out here." Regelman 

replied, "[I] don't smoke, so I'm going to leave."

Regelman began to walk down the porch steps and away from the house, toward 

the street. Cathey instructed: "Mr. Regelman stop walking." Regelman complied, turned 

around, and repeated, "I don't smoke or anything." Cathey then told Regelman, "Okay, 

you can either sit on the steps or sit in my patrol car. Which one do you want to do?" 

Regelman asked to return inside his house, but Cathey told him, "No you may not." This 

all occurred less than a minute after Regelman answered the door.

After some additional back and forth, Regelman said, "I'm not hurting anybody 

but myself." Cathey asked what he meant. An audio recording reflects the following 

exchange:

"[Regelman]: I mean, I've got a problem. I know I've got a problem. I'm not trying to 

hide it or anything.
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"[Officer Cathey]: What's your problem?

"[Regelman]: I do drugs. I'm not trying to hide it.

"[Officer Cathey]: Okay. Just marijuana or do you do anything worse?

"[Regelman]: That's it, man. I'm not trying to hurt anybody but . . . I mean the only 

person I'm hurting is myself."

Cathey then told Regelman he needed to be handcuffed as a precautionary 

measure after Regelman kept trying to put his hands in his pockets. Cathey handcuffed 

Regelman about two minutes into the exchange. 

About a minute after being handcuffed, Regelman said, "Can we please not do 

this, man . . . . Just give me a chance. . . . I'll get rid of everything." Approximately four 

minutes after being handcuffed, Regelman said, "You guys can just go in the house. It's 

next to the couch." Cathey responded that they could no longer do a consent search

because Regelman was in handcuffs, so they would wait for the warrant. Cathey left the 

scene to ask a judge for a search warrant. 

In his affidavit supporting the search warrant application, Cathey summarized

Regelman's statements on the porch as: "Mr. Regelman repeatedly begged me to cut him 

a break and advised he had a drug problem. Mr. Regelman also told me I should just take 

him to jail and that 'The stuff' was all sitting by the couch and that he would show it to 

me." The officer also described noticing the marijuana smell, stating:

"Upon my arrival, I rang the front door bell. While waiting for an answer, I 

smelled a strong odor of what I believed, based on my training and experience, to be raw 
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marijuana. A moment later a white male, who identified himself as Mr. Regelman 

answered the door. He stepped out onto the porch and closed the door behind him. When 

he stepped out of the house, the odor of marijuana grew even stronger. I note[d] Mr. 

Reglema[n]'s eyes were very bloodshot. I know this to be a common indication o[f]

marijuana use."

A judge granted the search warrant for Regelman's residence. Cathey executed it, 

finding about 1 ounce of marijuana, various pipes, and a scale. A majority of the drugrelated items were inside an inch-thick wooden box next to the couch, which was several 

feet from the front door. For the first time, Cathey read Regelman his Miranda rights.

Regelman was charged with possession of marijuana with intent to distribute 

within 1,000 feet of a school zone, a severity level 3 nonperson drug felony; possession 

of drug paraphernalia, a severity level 5 nonperson drug felony; possession of marijuana, 

a class A nonperson misdemeanor; and possession of drug paraphernalia, a class A 

nonperson misdemeanor.

Regelman filed a motion to suppress the evidence from the search. Cathey testified 

for the State at a suppression hearing. The court admitted into evidence the body camera 

audio/video recording, the search warrant, and Cathey's affidavit. The district court 

granted the motion to suppress.

The district court first concluded Regelman's statements about drug use occurred 

while he was unlawfully detained and under circumstances in which Miranda warnings 

should have been given. The district court ruled the questioning violated "Miranda

because Mr. Regelman was not given the warnings even though he was detained for close 

to an hour." Second, the court relied on State v. Huff, 278 Kan. 214, 221-22, 92 P.3d 604 

(2004), which it read to hold that the smell of marijuana by itself does not provide
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probable cause for a search. Finally, the court ruled the good-faith exception to the 

exclusionary rule did not apply because a well-trained officer should know the smell of 

marijuana alone was insufficient to find probable cause. The State filed an interlocutory 

appeal.

The Court of Appeals affirmed. In doing so, the panel agreed with the State that 

investigatory detentions—Terry stops—are not subject to Miranda protections. 

Regelman, 2017 WL 1197135, at *3 (citing State v. Lewis, 299 Kan. 828, 834-35, 326 

P.3d 387 [2014] [A custodial interrogation is distinguished from an investigatory 

interrogation, which occurs as a routine part of the fact-finding process before the 

investigation reaches the accusatory stage.]). Then, after expressing a rule that "[d]uring a 

Terry stop, a person is not free to terminate the encounter but nevertheless is not in 

custody," the panel applied the custody analysis from this court's Fifth Amendment 

caselaw to conclude Regelman's "continued detention exceeded the limits of 

investigatory detention and became custodial." 2017 WL 1197135, at *3-4.

After reaching that conclusion, the panel returned to Fourth Amendment caselaw, 

rejecting the State's argument that the detention was reasonable under Illinois v. 

McArthur, 531 U.S. 326, 329, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001) (holding 

warrantless, temporary seizure of house, accomplished by excluding homeowner from 

reentering, was reasonable when officers possessed probable cause for the warrant; there 

was cause to believe evidence would be destroyed if resident permitted to reenter; 

exclusion was limited to time reasonably necessary to get warrant; and officers 

reasonably attempted to balance law enforcement needs with homeowner's interest by 

tailoring the seizure to the circumstances). 2017 WL 1197135, at *5.

The panel further held marijuana odor alone was insufficient to support probable 

cause for a search warrant. Regelman, 2017 WL 1197135, at *5-6. Finally, the panel held 
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the good-faith exception did not apply because the officer should have known the search 

warrant lacked probable cause and that Regelman was in custody and should have been

given Miranda warnings. Regelman, 2017 WL 1197135, at *6.

This court granted the State's petition for review. Jurisdiction is proper. See K.S.A. 

20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-

2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon 

petition for review).

STANDARD OF REVIEW

Faced with a motion to suppress evidence, the State bears the burden of proving 

the search and seizure were lawful. K.S.A. 22-3216(2); State v. Gray, 306 Kan. 1287, 

1302, 403 P.3d 1220 (2017). As to the trial court's suppression order,

"'an appellate court reviews the factual underpinnings of the decision under a substantial 

competent evidence standard. The ultimate legal conclusion drawn from those facts is 

reviewed de novo. . . . Substantial evidence refers to evidence that a reasonable person 

could accept as being adequate to support a conclusion. . . . This court does not reweigh 

the evidence, assess the credibility of the witnesses, or resolve evidentiary conflicts. 

[Citations omitted.]' State v. Mattox, 305 Kan. 1015, 1035, 390 P.3d 514 (2017)." State v. 

Brown, 306 Kan. 1145, 1151, 401 P.3d 611 (2017).

STATEMENTS ABOUT DRUG USE

The State argues the panel erred because the officers had "legal authority to 

conduct an investigatory detention"; that they could detain Regelman until the 

investigation was complete; and that the use of handcuffs did not escalate the encounter 

into Miranda custody. And in its supplemental brief, the State explicitly contends 

"[i]nvestigative detentions are not subject to Miranda protections."
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The question is whether the affidavit's statements about drug use were illegally 

obtained and should be extracted from the search warrant application. We can resolve 

that based on a conclusion that Regelman was in Miranda custody. This makes it 

unnecessary to engage in a Fourth Amendment analysis about whether the seizure of 

Regelman was reasonable at the points when the incriminating statements were made. In 

other words, because the Fourth and Fifth Amendment analyses are distinct paths to 

excluding the statements, a decision unfavorable to the State on the Fifth Amendment 

issue renders the Fourth Amendment issue moot. See United States v. Kim, 292 F.3d 969, 

976 (9th Cir. 2002) ("[W]hether an individual . . . has been unreasonably seized for 

Fourth Amendment purposes and whether that individual is 'in custody' for Miranda

purposes are two different issues."). We choose to take the Fifth Amendment route to 

affirm the district court on the suppression of Regelman's statements. We express no 

opinion on the encounter's Fourth Amendment status. 

Under the Fifth Amendment, statements stemming from custodial interrogation 

must be excluded unless the State demonstrates it used procedural safeguards, i.e.,

Miranda warnings, to secure the defendant's privilege against self-incrimination. State v. 

Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009). "The Miranda safeguards are triggered 

only when an accused is (1) in custody and (2) subject to interrogation." State v. Lewis, 

299 Kan. 828, 834, 326 P.3d 387 (2014). "A custodial interrogation is defined as 

questioning initiated by law enforcement officers after a person has been taken into 

custody or otherwise deprived of his or her freedom in any significant way." Lewis, 299 

Kan. at 834. A custodial interrogation is distinguished from an investigatory 

interrogation, which occurs as a routine part of the fact-finding process before the 

investigation reaches the accusatory stage. 
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Factors to consider in determining if an interrogation is investigative or custodial 

include: (1) the interrogation's time and place; (2) its duration; (3) the number of law 

enforcement officers present; (4) the conduct of the officer and the person questioned; (5) 

the presence or absence of actual physical restraint or its functional equivalent, such as 

drawn firearms or a stationed guard; (6) whether the person is being questioned as a 

suspect or a witness; (7) whether the person questioned was escorted by officers to the 

interrogation location or arrived under his or her own power; and (8) the interrogation's 

result, e.g., whether the person was allowed to leave, was detained further, or was 

arrested after the interrogation. No single factor outweighs another, nor do the factors 

bear equal weight. Every situation must be analyzed on its own particular facts. 299 Kan. 

at 835.

In Regelman's case, the district court determined the questioning turned custodial,

and the panel agreed. We review this issue employing two distinct inquiries. First, we 

decide if there is substantial competent evidence supporting the existence of the 

circumstances found by the district court to support that determination. In doing so, we 

do not reweigh evidence, assess the credibility of the witnesses, or resolve conflicting 

evidence. Our second inquiry employs a de novo standard of review to determine 

whether, under the totality of those circumstances, a reasonable person would have felt 

free to terminate the interrogation and disengage from the encounter. 299 Kan. at 835.

There are no substantive facts in dispute, so we move to de novo review.

We agree with the district court that Regelman's questioning turned into a 

custodial interrogation requiring Miranda warnings. And we agree with the panel that 

this occurred when Cathey told Regelman to stop walking and either sit on the steps or sit 

in the patrol car. As the panel correctly observed:
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"Applying the [eight] factors to these circumstances, we note that Regelman was clearly 

considered a suspect, rather than a witness, and although he was not yet handcuffed or at 

a police station under a formal arrest, he was subjected to the functional equivalent of 

physical restraint since he had been denied freedom of movement and was ordered to 

return to his porch. Regelman was not free to leave, and he was not allowed to reenter his 

residence. The officers had imposed a restraint on Regelman's freedom of movement to a 

degree associated with a formal arrest. In that situation, a reasonable person would not 

have felt he or she was at liberty to terminate the interview and leave. The subjective 

application of that objective test was that Regelman actually tried to terminate the 

interview and leave and was prevented from doing so. Faced with an order supported by 

two officers, he complied. He was in custody." 2017 WL 1197135, at *4. 

Accordingly, the affidavit contained unlawfully obtained information regarding 

what Regelman told the officer about his drug use and the drugs inside the residence.

But this holding does not necessarily render the affidavit as a whole invalid 

because when an affidavit contains both lawfully and unlawfully obtained information, 

the court asks whether the affidavit supplied a substantial basis for finding probable cause

without the unlawfully obtained information. State v. Fisher, 283 Kan. 272, 302-03, 154 

P.3d 455 (2007). If a substantial basis nonetheless existed for finding probable cause, the 

warrant was valid and evidence obtained pursuant to it will not be suppressed. See 283 

Kan. at 309. We consider next whether the smell of marijuana as recited by Cathey in the 

search warrant application, coupled with his references to his training and experience and 

his observation of Regelman's bloodshot eyes, supplied the probable cause for the 

warrant.
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MARIJUANA ODOR AND PROBABLE CAUSE

This court has provided the following definition for probable cause:

"'Probable cause is the reasonable belief that a specific crime has been committed and 

that the defendant committed the crime. Probable cause exists where the facts and 

circumstances within the arresting officers' knowledge and of which they had reasonably 

trustworthy information are sufficient in themselves to warrant a man of reasonable 

caution in the belief that an offense has been or is being committed. 

"'When determining whether probable cause exists, an appellate court considers 

the totality of the circumstances, including all of the information in the officer's 

possession, fair inferences therefrom, and any other relevant facts, even if they may not 

be admissible on the issue of guilt.'" State v. Ramirez, 278 Kan. 402, 406, 100 P.3d 94 

(2004) (quoting State v. Abbott, 277 Kan. 161, Syl. ¶¶ 2-3, 83 P.3d 794 [2004]).

Cast more pointedly in terms of probable cause for a search, probable cause "can 

be established if the totality of the circumstances indicates there is a fair probability that 

the place to be searched contains contraband or evidence of a crime." State v. SanchezLoredo, 294 Kan. 50, Syl. ¶ 2, 272 P.3d 34 (2012) (warrantless vehicle search); see also 

Hicks, 282 Kan. at 603 (noting magistrate judge considering whether to issue search 

warrant charged with making "'"a practical, common-sense decision whether, given all 

the circumstances set forth in the affidavit . . . , including the 'veracity' and 'basis of 

knowledge' of [any] persons supplying hearsay information, there is a fair probability that 

contraband or evidence of a crime will be found in a particular place"'") (quoting State v. 

Gilbert, 256 Kan. 419, 421, 886 P.2d 365 [1994]).

In State v. Hubbard, 308 Kan. at ___, this court held the totality of the 

circumstances surrounding a police officer's detection of the smell of raw marijuana 
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emanating from a residence can provide probable cause to believe the residence contains 

contraband or evidence of a crime. Slip op. at 24. We explained:

"Such circumstances include, but are not limited to, proximity to the odor's source, 

reported strength of the odor, experience identifying the odor, elimination of other 

possible sources of the odor, and the number of witnesses testifying to the odor's 

presence. This is ultimately a case-by-case determination based on the circumstances. 

Not all cases relying on odor will have the same result." Slip op. at 24. 

In Regelman's case, the district court erred when it held as a matter of law that "the 

smell of marijuana alone is insufficient to provide a probable cause determination under 

Kansas law." The question is more complicated as we explained in Hubbard. The district 

court approached the issue as a de novo legal question. Notably, the district court opined, 

"Kansas law should require more than the mere smell of marijuana because Kansas law 

does not criminalize the use of marijuana, only the possession of the drug." But that view 

does not reflect the law, as noted in Hubbard. The district court applied the wrong 

standard. 

In Regelman's case, after excising the drug use admissions, the remaining affidavit 

facts demonstrate that: (1) while conducting a wellness check at Regelman's home after 

he was reported absent from work and not answering his phone; (2) a law enforcement 

officer smelled "a strong odor" of what he believed, based on his training and experience, 

to be raw marijuana; (3) when Regelman opened the front door to answer and stepped out 

onto the porch, "the odor of marijuana grew even stronger"; (4) Regelman's eyes were 

"very bloodshot," which the officer knew to be a common indication of marijuana use; 

and (5) possession of marijuana is illegal.

In reviewing whether this would be enough for the judge to issue the search 

warrant, the specific—and narrower—legal question is reviewed under a more deferential 
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standard. And that standard is whether the evidence provided the issuing judge "with a 

substantial basis for determining that probable cause existed." Fisher, 283 Kan. at 300. 

We need only see enough in the affidavit to persuade us that there was a substantial basis 

for the issuing judge's conclusion. 283 Kan. at 301 (quoting State v. Hicks, 282 Kan. 599, 

613, 147 P.3d 1076 [2006]).

In Fisher, we explained our review under this circumstance "is less rigorous than 

the de novo standard of review of reasonable suspicion and probable cause 

determinations underlying warrantless searches . . . to provide law enforcement an 

incentive to seek warrants." 283 Kan. at 301. Put another way, the Hicks court stated:

"When an affidavit in support of an application for search warrant is challenged, 

the task of the reviewing court is to ensure that the issuing magistrate had a substantial 

basis for concluding probable cause existed. This standard is inherently deferential. It 

does not demand that the reviewing court determine whether, as a matter of law, probable 

cause existed; rather, the standard translates to whether the affidavit provided substantial 

basis for the magistrate's determination that there is a fair probability that evidence will 

be found in the place to be searched." Hicks, 282 Kan. 599, Syl. ¶ 2.

The dissent contends suppression was warranted because "[t]he State's only 

evidence to establish probable cause . . . was Officer Cathey's testimony that he smelled 

the odor of raw marijuana, while standing on Regelman's porch" and that the State should 

have supplied "foundation for that testimony by establishing that the officer was in a 

position that would rationally allow him to perceive the odor." Slip op. at 18. The 

dissent's focus on testimony at the suppression hearing is puzzling because admissibility 

of the evidence uncovered in the search turns on whether the magistrate's pre-warrant 

probable cause determination should stand, absent the illegally obtained evidence. It does 

not turn on whether suppression hearing testimony established probable cause.
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What's more, the officer's affidavit statements were more detailed than simply that 

he smelled raw marijuana while standing on Regelman's porch. The affidavit made clear 

the officer was trained and experienced in detecting marijuana odor; that the officer was 

standing at the front door and smelled "a strong odor" of what he believed was raw 

marijuana before the front door was opened; that the odor was "even stronger" after 

Regelman opened the front door; that Regelman's eyes were very bloodshot, which the 

officer knew to be a common indication of marijuana use and was contemporaneous in 

time and consistent with the officer's noticing the strong marijuana smell; and that 

marijuana possession is illegal.

We hold these affidavit facts provided a substantial basis for the issuing judge's 

determination that there was a fair probability that evidence of a crime, i.e., illegal 

marijuana possession, would be found in the home.

Framed in the language of Fisher, even without the drug-use statements, the 

information remaining in the affidavit allowed the issuing judge to make "a practical, 

common-sense decision whether a crime has been committed and whether there is a fair 

probability that contraband or evidence of a crime will be found in a particular place." 

Fisher, 283 Kan. 272, Syl. ¶ 12.

We reverse the district court's holding in this regard and remand the case to the 

district court for further proceedings. 

Affirmed in part, reversed in part, and remanded. 
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* * *

BEIER, J., concurring in the result: I concur in the result reached by today's 

majority in this case, because defendant Tyler Regelman made no effort to challenge the 

admission of the testimony of the law enforcement officer at the suppression hearing on 

the basis that he was not qualified to give an expert opinion on the existence or strength 

of the odor of raw marijuana. It is clear that the officer relied on his law enforcement 

training, as well as his experience in detecting the odor of raw marijuana in other cases, 

to arrive at his opinion on the presence of the odor in this case. Indeed, the majority also 

relies upon that training and experience to reverse and remand. 

In my view, the officer was not only giving an opinion but also testifying as an 

expert, and thus the district court should have acted as a gatekeeper on the admission of 

this critically important evidence, as provided in K.S.A. 2017 Supp. 60-456(b). See State 

v. Hubbard, 308 Kan. ___, ___ P.3d ___ (No. 113,888 this day decided) (Beier, J., 

dissenting), slip op. at 35-36. I cannot concur in the rationale of the majority, which turns 

a blind eye to the essential missed step before admission, accepting the officer's expert 

opinion testimony as an unquestionable fact that can, as a matter of law, assist in leading 

to the establishment of probable cause under the totality of the circumstances.

* * *

JOHNSON, J., dissenting: I agree with Justice Beier's criticism of the majority's 

rationale, but I cannot join her in concurring with the majority's result. I would simply 

affirm the district court's suppression of the evidence.

Granted, as Justice Beier points out, Regelman did not explicitly challenge Officer 

Cathey's qualifications to deliver an expert opinion on the presence of the odor of raw 
18

marijuana, as did the defendant in State v. Hubbard, 308 Kan. ___, ___ P.3d ___ (No. 

113,888, this day decided), slip op. at 8. Hubbard cited to an article from the Smell and 

Taste Center, University of Pennsylvania School of Medicine: Doty et al., Marijuana 

Odor Perception: Studies Modeled From Probable Cause Cases, 28 Law and Human 

Behavior 223 (2004). The studies described in that article cast doubt on a human's ability 

to smell raw marijuana under the circumstances commonly presented in criminal cases 

involving probable cause determinations. In another context, we have refused to allow an 

officer's extensive training and experience to trump reliability. City of Wichita v. Molitor, 

301 Kan. 251, 263-64, 341 P.3d 1275 (2015), held that a law enforcement officer's 

testimony relating the results of a horizontal gaze nystagmus (HGN) field sobriety test, 

administered to determine the level of intoxication of a driving under the influence 

suspect, was inadmissible evidence until the State could establish that the test produces 

reliably accurate results. We should require no less proof of reliability for the human 

detection of the odor of raw marijuana.

But even without considering the implications of the law regarding admission of 

expert opinion testimony, the district court's suppression was justified in this case. The 

State had the burden to establish probable cause that a crime was being committed inside 

Regelman's house and that a search of the house would produce evidence of that crime. 

The State's only evidence to establish probable cause—after excising the 

unconstitutionally obtained evidence—was Officer Cathey's testimony that he smelled 

the odor of raw marijuana, while standing on Regelman's porch. It was incumbent upon 

the State to lay the foundation for that testimony by establishing that the officer was in a 

position that would rationally allow him to perceive the odor. Cf. K.S.A. 2017 Supp. 60-

456(a) (to admit lay opinion, judge must find it is "rationally based on the perception of 

the witness"). 
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Yet, the search of the residence revealed only 1 ounce of raw marijuana, in an 

inch-thick box, located beside a couch several feet from the porch. Such a long-range 

detection of the odor of raw marijuana in a closed container at least raises a question as to 

the rationality of the perception. While a person entering a house party where the 

attendees are smoking cigarettes will immediately perceive the smell of smoke, that same 

person entering a nonsmoking party is unlikely to perceive the smell of an open pack of 

cigarettes in an attendee's purse, regardless of the person's familiarity with that odor. 

Moreover, we have opined that an officer's sensory perceptions are inherently subjective 

and imprecise, as well as subject to confirmation bias. Molitor, 301 Kan. at 267. 

Consequently, the district court was justified in finding that, in this case, the officer's 

belief that he smelled the odor of raw marijuana was insufficient, standing alone, to 

establish probable cause.

ROSEN, J., joins in the foregoing dissenting opinion.