Smell of Ether Can Justify Police Search, Court Rules

Police officers who smell the explosive chemical ether can investigate further and search for the source of the odor without a warrant in some instances, the state Supreme Court ruled Thursday.

The court, in a unanimous ruling, stopped short of saying the smell of ether automatically would allow police to search a residence without a warrant.

But the justices said officers can press their investigation if they smell ether, noting that the chemical is used to process a variety of illegal drugs--which would suggest that there is a crime in progress--and that it also is dangerously explosive.

The opinion by Justice Stanley Mosk said that while ether has legal uses, “the possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.”

”. . . The strong smell of ether, equally consistent with criminal and innocent activity, but in either event indicative of possible danger, justifies further investigation by law enforcement officers,” Mosk wrote.

The court said that if the further investigation results in discovery of danger or evidence of a crime, “a warrantless entry, search or arrest may be justified.”

The court declined, however, to establish a firm rule that would tell officers when and when not to investigate further.

“There is no absolute rule that can accommodate every warrantless entry into premises housing a drug laboratory. It is manifest that the emergency nature of each situation must be evaluated on its own facts,” Mosk wrote.

The court unanimously upheld the warrantless search that led to Thursday’s case. The case began on April 7, 1981, when Oakland police responded to a burglary call.

Smelled Chemical

An officer found a back window open at the house where he believed the burglary was occurring. On the belief that the thieves might still be inside, the officer climbed through the window and discovered a drug laboratory and smelled what he thought was ether.

He called a supervisor to confirm the odor, who in turn called a vice officer who entered the home. The third officer concluded that the smell was ether and summoned federal drug enforcement officials and firefighters.

The occupant, Mark Duncan, was charged with possession of chemicals used to make methamphetamine, and transportation and sale of methamphetamine. A trial judge subsequently refused to throw out the evidence obtained by the search, and the high court Thursday upheld that decision.

Chief Justice Rose Elizabeth Bird, joined by Justice Cruz Reynoso, said in a concurring opinion that she agreed with the majority but emphasized that it was a narrow ruling, applying merely to the case at hand.

Deputy Atty. Gen. Ronald E. Niver called the decision “reasonable,” saying that while police will not be able to “barge into a house,” officers will not have to turn their backs if they smell ether.

In another case, the court ruled 4 to 2 that Halaco Engineering Co. does not need to obtain a permit from the South-Central Coastal Commission to operate a metal-recycling plant near the coast outside of Oxnard.

The court noted that the plant had been operating before voters approved the 1972 initiative putting the Coastal Act in place and creating the Coastal Commission. According to the law, industry and other uses that predate the initiative can be deemed to have “vested rights” to continue in some circumstances.

Deputy Atty. Gen. Peter Kaufman said the ruling will affect few companies because the law, which has been in effect for 13 years, has curbed industrial development along the coast.