State v. Orpin

NOT DESIGNATED FOR PUBLICATION No. 129,111 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. JOSHUA CHARLES ORPIN, Appellant. MEMORANDUM OPINION Appeal from Johnson District Court; TIMOTHY MCCARTHY, judge. Submitted without oral argument. Opinion filed November 6, 2026. Affirmed. Sean P. Randall, of Kansas Appellate Defender Office, for appellant. Shawn E. Minihan, assistant district attorney, Trey Bohlender, legal intern, Stephen M. Howe, district attorney, and Kris W. Kobach, attorney general, for appellee. Before COBLE, P.J., BRUNS and ISHERWOOD, JJ. BRUNS, J.: Joshua Charles Orpin appeals from his convictions for possession of methamphetamine and possession of drug paraphernalia. Before trial, Orpin moved to suppress evidence seized by a law enforcement officer after the car Orpin was driving stalled on a busy street and obstructed traffic. In his motion to suppress, Orpin argued that the officer lacked probable cause to search his vehicle, even though the officer's actions were prompted by the odor of burnt marijuana that he detected while initially speaking with Orpin. The district court denied the motion to suppress, concluded Orpin was guilty as charged following a bench trial on stipulated facts, and placed him on probation. Based on our review of the record in light of current Kansas law, we find that 1 Orpin's motion to suppress was properly denied. Thus, we affirm the decision of the district court on the motion to suppress as well as Orpin's convictions. FACTS The parties are familiar with the undisputed facts of this case, so we will simply summarize them in this section of our opinion. To the extent that it is necessary, we will discuss additional facts in our analysis. In January 2024, Officer Gary Schemper of the Fairway Police Department was on patrol around 11:30 a.m. when he observed a Nissan Altima stalled on the roadway near the intersection of Shawnee Mission Parkway and Mission Road. Because the car was impeding the flow of traffic and creating a hazard, Officer Schemper approached the driver—who identified himself as Orpin—and told him to move his car off the street. When Orpin opened his car door to talk to Officer Schemper—who had been a law enforcement officer for more than 17 years and had received training in detecting the odor of marijuana—the officer immediately smelled what he described as the strong odor of burnt marijuana. Once Orpin moved his car to a nearby parking lot, Officer Schemper had him exit the vehicle so he could search it because of the smell of marijuana. The search of Orpin's car yielded methamphetamine, two glass pipes, "rubber tie- offs" commonly used for the injection of drugs, hypodermic needles, and a drug used to counter the effects of heroin overdoses. Orpin was placed under arrest and subsequently charged with one count each of felony possession of methamphetamine and misdemeanor possession of drug paraphernalia. Prior to trial, Orpin moved to suppress the evidence seized during the search of his car. In his motion, Orpin argued that the odor of burnt marijuana was insufficient to 2 establish the probable cause necessary to justify the search of his vehicle. The district court held a hearing on the motion. After considering Officer Schemper's testimony and the arguments of counsel, the district court denied Orpin's motion to suppress. In reaching its decision, the district court explained: "When he approached the vehicle, the officer testified on multiple occasions that there was the smell of marijuana coming from the vehicle and I think that's the issue for the Court to determine in this case. The State cites [State v. MacDonald, 253 Kan. 320, 856 P.2d 116 (1993); State v. Fewell, 286 Kan. 370, 184 P.3d 903 (2008); and State v. Kirk, 40 Kan. App. 2d 817, 196 P.3d 407 (2008)], that the smell of marijuana coming from a vehicle gives the law enforcement officer, who is trained in detecting the odor of marijuana, probable cause to search the vehicle. .... "I do believe that the officer had probable cause to search the vehicle under Kansas law and based on the totality of the circumstances in this case . . . the defendant's motion to suppress evidence is considered and denied." Following the district court's denial of the suppression motion, the parties agreed to a stipulation of facts while preserving the legal arguments presented at the preliminary and suppression hearings. The case proceeded to a bench trial at which the district court read the stipulated facts into the record and heard closing arguments presented by counsel. At the conclusion of the bench trial, the district court found Orpin guilty of both charges. The district court subsequently granted Orpin's motion for a dispositional departure and placed him on probation for 12 months with intensive supervision by community corrections. Orpin received an underlying prison term of 28 months for the felony conviction and 6 months in jail for the misdemeanor conviction. The district court ordered those sentences to run concurrent with each other in the event they were ever imposed. 3  Thereafter, Orpin filed a timely notice of appeal. ANALYSIS The sole issue presented in this appeal is whether the district court erred in denying Orpin's motion to suppress. Although Orpin candidly concedes that the initial public safety encounter that transitioned into an investigatory detention was appropriate after Officer Schemper detected the odor of burnt marijuana coming from the car, he argues that the district court erred in finding that there was sufficient probable cause to justify a search of the vehicle. In response, the State contends that the district court appropriately relied on existing precedent from the Kansas Supreme Court and asks us to find that Officer Schemper had sufficient probable cause to search Orpin's car. And, as a result, the district court properly denied the motion to suppress. Under K.S.A. 22-3216(2), the State must prove by a preponderance of the evidence that a search and seizure was lawful. State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016). In reviewing a district court's decision on a motion to suppress, we apply a bifurcated standard. First, we review the district court's factual findings to determine if they are supported by substantial competent evidence. Second, if there is substantial competent evidence in the record to support the district court's determination, we then review the ultimate legal conclusion reached by the district court de novo. State v. Cash, 313 Kan. 121, 125-26, 483 P.3d 1047 (2021). Because the parties in this case stipulated to the facts, our review is unlimited. The Fourth Amendment to the United States Constitution and section 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Kan. Const. Bill of Rights, § 15. Ordinarily, a law enforcement officer must have a warrant from a judge or magistrate for a search to be lawful. State v. Fewell, 37 Kan. App. 2d 283, 285, 152 P.3d 1249 (2007). In order for an officer to conduct a 4 warrantless search, the State must establish an exception to the warrant requirement. State v. Hubbard, 309 Kan. 22, 32, 430 P.3d 956 (2018). A law enforcement officer may conduct a warrantless search if there is probable cause accompanied by exigent circumstances. State v. Fewell, 286 Kan. 370, 376, 184 P.3d 903 (2008). The mobility of a motor vehicle provides the requisite exigent circumstance in Orpin's case. Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (1999). An individual's expectation of privacy regarding their vehicle is also significantly less than the privacy expectation relating to one's home. State v. Conn, 278 Kan. 387, 395, 99 P.3d 1108 (2004). Even if the driver is removed from the vehicle at the time of the search, the vehicle is still considered "mobile" for purposes of this exception. See Pennsylvania v. Labron, 518 U.S. 938, 939-40, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996). With exigency established by the automobile exception in this case, we need only determine whether Officer Schemper had probable cause to search Orpin's car based on the odor of marijuana he detected as coming from the vehicle. It is important to recognize that the threshold for showing probable cause is not as high as the proof beyond a reasonable doubt required for a criminal conviction. Fewell, 286 Kan. at 377 (citing State v. Abbott, 277 Kan. 161, 164, 83 P.3d 794 [2004]). By contrast, a law enforcement officer has probable cause to search a vehicle without a warrant where "the totality of the circumstances indicates there is a 'fair probability' that the vehicle contains contraband or evidence [of a crime]." State v. Stevenson, 299 Kan. 53, 64-65, 321 P.3d 754 (2014). The Kansas Supreme Court has held that the odor of marijuana coming from a vehicle—when detected by an experienced law enforcement officer—"standing alone, provides probable cause for a motor vehicle search." State v. MacDonald, 253 Kan. 320, Syl. ¶ 2, 856 P.2d 116 (1993); see also State v. Goff, 44 Kan. App. 2d 536, 540, 239 P.3d 467 (2010) (A trained officer who smelled marijuana while conducting a stop had 5 probable cause to search the vehicle.); State v. Kirk, 40 Kan. App. 2d 817, 820, 196 P.3d 407 (2008) (A trained officer who smelled marijuana coming from a vehicle had probable cause to search the vehicle.); State v. Delgado, 36 Kan. App. 2d 653, 658-59, 143 P.3d 681 (2006) (finding that officer's detection of odor of marijuana coming from vehicle provided probable cause in and of itself to search passenger compartment); State v. Campbell, No. 123,189, 2022 WL 731069, at *6 (Kan. App. 2022) (unpublished opinion) (A trained law enforcement officer's detection of the smell of burnt marijuana, standing alone, is sufficient to establish probable cause and the totality of the circumstances further supports a finding of probable cause to search a vehicle.). In MacDonald, our Supreme Court explained that a highway patrol trooper had probable cause to search a vehicle after he smelled the odor of marijuana because "[t]he opposite conclusion would require [an] officer to ''look the other way'' and not pursue evidence which signals a crime." 253 Kan. at 325. Subsequently, our Supreme Court found in Fewell that the smell of burnt marijuana coming from a vehicle demonstrates "that someone in the vehicle had recently been in possession of and/or smoking marijuana." 286 Kan. at 383-84. Moreover, we note that MacDonald and Fewell have been followed by Kansas courts for many years, and neither case has been overruled. Consequently, both continue to reflect the current law in Kansas. Turning to this case, we are to review Officer Schemper's actions by applying common sense and ordinary human experience while—at the same time—giving deference to his training and experience as a law enforcement officer. See State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998). At the suppression hearing, Officer Schemper testified regarding his training and experience in detecting the odor of marijuana. As a result, when he encountered Orpin that day, he recognized the strong odor he detected as the smell of burnt marijuana. As our Supreme Court found in Fewell, "the fact that [the officer] smelled burnt marijuana, rather than fresh marijuana, is 6 particularly telling, in that it indicates that someone inside the vehicle had very recently engaged in criminal activity." 286 Kan. at 382. Based on MacDonald and its progeny, we find that the stipulated facts agreed to by the parties are sufficient to establish that Officer Schemper had probable cause to conduct a search of Orpin's vehicle. See MacDonald, 253 Kan. at 324-25. It is important to recognize that in Kansas, subject to limited exceptions, the possession of marijuana continues to violate the law despite the different tack taken by our surrounding sister states. See K.S.A. 21-5701. Likewise, despite the legalization of marijuana in some states, with limited exceptions it also remains illegal under federal law to possess marijuana. See 21 U.S.C. § 844. Of course, it is the role of the legislative branch—not the judicial branch—to decide whether to amend criminal statutes. State v. Zongker, 322 Kan. 137, 138, 586 P.3d 769 (2026) ("The policy judgments embedded in a statute belong to the Legislature, and we doubt that body would appreciate us substituting our own."). Although the burnt marijuana smell alone would be sufficient to establish probable cause under existing Kansas law, a review of the totality of the circumstances also supports the district court's determination that Officer Schemper had probable cause to search Orpin's vehicle. See Hubbard, 309 Kan. at 32. It is undisputed that Schemper is an experienced law enforcement officer. Likewise, it is undisputed that he observed Orpin's car obstructing traffic and that the strong odor he detected upon making contact with Orpin was one that he knew, from his training and experience, to belong to burnt marijuana. Accordingly, viewing the totality of the evidence through the lens of common sense clarifies that it was logical for an officer with Schemper's experience to draw the conclusion that there was a "fair probability" Orpin's vehicle contained evidence of a crime. See Stevenson, 299 Kan. at 64-65; Hubbard, 309 Kan. at 35. 7  In his brief, Orpin highlights the fact that "nearly half of the union [has] legalized the possession and consumption of marijuana for adults." He directs our attention to Colorado and Missouri to highlight their respective legalization of the use of marijuana, as well as the decision of voters in Oklahoma and Nebraska to legalize the use of marijuana for medical purposes. But —as discussed above—the Kansas Legislature has not seen fit to follow suit. See K.S.A. 21-5706(b)(3). Orpin's argument is not novel. Our court has previously rejected the argument that marijuana odor loses its evidentiary significance because the substance may have been lawfully obtained in a nearby state. See State v. Baez, No. 126,589, 2024 WL 5182922 (Kan. App. 2024) (unpublished opinion), rev. denied 320 Kan. 863 (2025). In that case, two Wichita law enforcement officers, Walters and Faulkner, executed the search of Baez' vehicle based on their collective detection of the odor of marijuana and ultimately seized numerous items that were indicative of criminal conduct, including a significant amount of marijuana and a banded bundle of cash. The State charged Baez with multiple drug related offenses, and prior to trial, Baez filed a motion to suppress on the theory that the officers lacked reasonable suspicion to initiate the traffic stop and, further, did not have probable cause to search his vehicle. The district court conducted a hearing on Baez' motion at which time both officers testified to the professional training and experience they had which enabled them to detect and identify the odor of marijuana. Baez' motion was ultimately denied, and the case proceeded to a bench trial on stipulated facts. As part of an agreement between the parties, the State agreed to dismiss two of the charges and only go forward with charges for possession of marijuana with intent to distribute and criminal acquisition of proceeds derived from violations of drug laws. The district court concluded Baez was guilty of both offenses. 2024 WL 5182922, at *2-4. 8  On appeal to this court, Baez argued—among other things—that because marijuana is legal in other states, it was possible that the odor the officers detected was simply a remnant from Baez' legal possession. 2024 WL 5182922, at *7. This court noted that while many states have legalized marijuana, that dynamic had not prompted our Supreme Court to reverse its long-standing position that the odor of marijuana can provide law enforcement officers with reasonable suspicion or probable cause that a crime is being committed in Kansas and this court is duty-bound to follow Kansas Supreme Court precedent. 2024 WL 5182922, at *7 (citing Hubbard, 309 Kan. 22, Syl. ¶ 5). We addressed another variation of this argument in State v. Gibson, No. 123,064, 2021 WL 5027477 (Kan. App. 2021) (unpublished opinion). In that case, Gibson argued that the officer lacked probable cause to search the vehicle that he was a passenger in because Kansas recently legalized the growth of industrial hemp which exhibits an odor that is virtually indistinguishable from that of marijuana. While under cross-examination during the hearing, the officer agreed that marijuana is legal in some capacity in Colorado, Oklahoma, and Missouri, and acknowledged he had no specific training to recognize when a particular odor is attributable to hemp rather than marijuana. 2021 WL 5027477, at *2. On appeal, this court provided multiple justifications for its rejection of Gibson's theory that the legalization of hemp renders the odor ambiguous. First and foremost, it highlighted the lack of any authority from Gibson that arguably evidenced the Kansas Supreme Court's departure from, or even reconsideration of, its holding in MacDonald, and that more recent appellate decisions, including Hubbard, reflected its continued adherence to that holding. Gibson, 2021 WL 5027477, at *8-9. Second, even if the court did find the premise of Gibson's argument compelling, the odor of raw marijuana was not the sole factor the officers relied on in arriving at their probable cause determination; additionally, the vehicle's windows were rolled down despite the considerably warm 9 temperature outside, the driver was content to allow Gibson to answer the officer's questions rather than responding for himself, and the occupants were unable to provide a consistent account of their travel history. 2021 WL 5027477, at *9. Finally, our court invoked the good-faith exception. Specifically, it observed that even if probable cause was lacking, it would still be inappropriate to suppress the evidence because published Kansas caselaw consistently held that the smell of raw marijuana provided probable cause to conduct the search of a vehicle. 2021 WL 5027477, at *9 (citing Davis v. United States, 564 U.S. 229, 241, 131 S. Ct. 2419, 180 L. Ed. 2d 285 [2011]) (exclusionary rule does not apply when officers rely on objectively reasonable judicial precedent which is later overruled). It is again significant to highlight Hubbard because it essentially offers the foundation for why marijuana odor retains its significance in our probable cause calculus despite legalization or approval of the drug for medical purposes in several of our neighboring states. The Hubbard court favorably recounted the manner in which this court's underlying opinion distinguished our Supreme Court's earlier holding in State v. Ibarra, 282 Kan. 530, 543, 147 P.3d 842 (2006). The Hubbard panel had observed that the odor of ether, a product used in the illegal production of methamphetamine, was insufficient—standing alone—to provide the requisite probable cause to justify the search of a vehicle, because ether is a legal substance and therefore its strong odor is as consistent with lawful activity as it is indicative of criminal activity. Hubbard, 309 Kan. at 39-40. Notably, the Hubbard court recounted this court's observation that unlike ether, marijuana is not a substance that a person can possess legally in Kansas, so its odor was not likewise consistent with lawful activity, a distinction it found persuasive in upholding the decision of this court. 309 Kan. at 40. Hence, we find that Hubbard's reasoning undercuts Orpin's 'legalization in neighboring states' argument because it reinforces the 10 principle that the relevant inquiry is whether the odor is consistent with lawful activity in Kansas, not in Colorado, Missouri, or Oklahoma. The answer to our inquiry is the same in this case as it was in MacDonald—that the odor of marijuana is inherently indicative of illegal activity. See Stevenson, 299 Kan. at 58-59 (explaining that the underlying rationale for the MacDonald bright-line rule is that in Kansas, the odor of marijuana is always viewed as evidence of illegal activity). Understandably, the Stevenson court declined to extend the MacDonald rule to the odor of alcohol—which is legal in Kansas so long as it is used appropriately. The foundation for the Stevenson court's conclusion was largely derived from the statutory framework governing open containers. Specifically, the court noted that the transporting of an open container of alcohol is only sometimes unlawful under K.S.A. 8-1599. As such, in order to justify a search, officers must possess information creating a fair probability that the vehicle contains unlawfully transported alcohol—not merely alcohol in any form. 299 Kan. at 64-65. We acknowledge the concern expressed by our colleague in the dissent but reiterate that it is the role of our Legislature—not the courts—to make policy decisions related to the possession and use of marijuana in Kansas. Furthermore, we have not seen a clear indication from our Supreme Court that it intends to depart from the law that has governed our state for decades. Washington v. Topeka Rescue Mission, 66 Kan. App. 2d 393, 398, 584 P.3d 677 (Court of Appeals is duty-bound to follow Kansas Supreme Court precedent unless there is some indication that the Supreme Court is departing from its previous position), rev. denied 322 Kan. ___ (2026). Certainly, the fact that our neighboring states have changed their laws related to marijuana does not result in a de facto decriminalization of the drug within the borders of our state. In Kansas, the possession and use of marijuana must be viewed through the lens of our own laws and not the laws of other states. 11  Orpin's position—as adopted by the dissent—would also create pragmatic difficulties in its application. For example, how close must one be to the border of one of the neighboring states to avail themselves of the ambiguity surrounding their possession of marijuana? Is that distance subject to change if the nearest state is one where the drug is legalized for medicinal purposes only? What, if any, difference exists when the individual is stopped while driving toward, versus away from, the state of legalization? Here, as the dissent acknowledges, "Orpin's vehicle was headed east toward Missouri." (Emphasis added.) Slip op. at 21. Again, these policy questions are best left to the Kansas Legislature to resolve. The argument Orpin raises is not unique to Kansas nor is rejection of this argument unique to this panel's majority. The foundational principle in other states where marijuana possession remains illegal mirrors our own in that when a trained officer detects the odor of marijuana emanating from a vehicle, that factor—in and of itself—is sufficient to furnish the officer with probable cause to conduct a warrantless search under the automobile exception to the warrant requirement. This is because in those states— like Kansas—marijuana is considered to be contraband under the law, and its odor provides an objectively reasonable basis to suspect a fair probability that contraband will be found. See Bain v. State, 414 So. 3d 168, 172 (Ala. Crim. App. 2024) (fact that the odor of marijuana may also indicate the presence of a legal substance, such as hemp, does not negate the probability that an illegal substance may be found); State v. Schiene, 296 N.C. App. 126, 133, 907 S.E.2d 87 (2024) (odor of marijuana alone supports a determination of probable cause even if some use of industrial hemp products is legal under state law). In Bradford v. State, 246 N.E.3d 808, 816 (Ind. Ct. App. 2024), the Indiana Court of Appeals rejected the argument that because Illinois, Michigan, and Ohio had all legalized marijuana, a motorist traveling from a bordering state may emanate the odor of marijuana that was legally used or possessed. The court reasoned that because possession 12 of marijuana remained illegal in Indiana, a trained officer who smelled the odor of marijuana in a vehicle had probable cause to believe that marijuana would be found. See also State v. Seckinger, 301 Neb. 963, 969, 920 N.W.2d 842 (2018) (The odor of marijuana in a vehicle provides an objectively reasonable basis to suspect contraband will be found, and while there may be innocent explanations for the odor, probable cause is based on probabilities and does not require officers to rule out all innocent explanations for suspicious facts.); State v. Myers, 442 N.J. Super. 287, 298, 303, 122 A.3d 994 (2015) (The odor of marijuana gave police probable cause to arrest defendant absent any indication that defendant, or anyone in his car, was a registered qualifying patient or otherwise authorized to possess medical marijuana.); State v. Roberson, 492 P.3d 620, 623 (Okla. Crim. App. 2021) (Decriminalization of marijuana possession for those holding medical marijuana licenses does not negate a police officer's formation of probable cause based upon the odor of marijuana, because marijuana possession otherwise remains a crime in Oklahoma.). We look to State v. Cooper, 48 Kan. App. 2d 671, 301 P.3d 331 (2013), as our final example of why Orpin's argument cannot prevail. In that case, a panel of this court held that the Privileges or Immunities Clause of the Fourteenth Amendment cannot be invoked to prohibit Kansas from enforcing its marijuana possession statutes against a Colorado resident who lawfully obtained medical marijuana under Colorado law and brought it into Kansas. This court concluded that the question of whether a person is lawfully in possession of marijuana is a question resolved under state law and is therefore beyond the reach of the Privileges or Immunities Clause. 48 Kan. App. 2d at 675. In our view, this confirms that Kansas does not run afoul of constitutional principles when it continues to treat marijuana as contraband regardless of its legal status in adjacent states. The variance in marijuana laws across the United States demonstrates that the question of whether to legalize the possession and/or use of marijuana—and to what extent—is a matter of public policy to be addressed by our legislature—not by our 13 courts. In re A.P., 62 Kan. App. 2d 141, 148, 506 P.3d 988 (2022) ("[Q]uestions of public policy are for legislative and not judicial determination."). As our Supreme Court has found, "'questions of public policy are for legislative and not judicial determination, and where the legislature does so declare, and there is no constitutional impediment, the question of the wisdom, justice, or expediency of the legislation is for that body and not for the courts.'" State v. Spencer Gifts, 304 Kan. 755, 765, 374 P.3d 680 (2016) (quoting State ex rel. Fatzer v. Kansas Turnpike Authority, 176 Kan. 683, 695, 273 P.2d 198 [1954]); see also In re Estate of Gardiner, 273 Kan. 191, 215, 42 P.3d 120 (2002) ("If the legislature wishes to change public policy, it is free to do so; we are not."). It appears that Orpin would have us ignore—if not overrule—State v. MacDonald and its progeny. Specifically, he argues that "[t]imes change, and as a result, so do the circumstances that surround traffic stops and searches. What used to constitute probable cause a quarter of a century ago (the smell of marijuana) . . . no longer constitutes probable cause." But our court is duty-bound to follow the decisions of the Kansas Supreme Court. See State v. Patton, 315 Kan. 1, 16, 503 P.3d 1022 (2022). In light of the fact that the MacDonald decision has reflected the law of Kansas for more than 30 years and has been cited favorably by Kansas appellate courts multiple times over the years, we have no indication that our Supreme Court is inclined to overrule these decisions. Finally, Orpin argues that the items found during the search of his car "are 'fruit of the poisonous tree' and should have been suppressed." However, even if we were to find that the search of Orpin's car was improper, that would not necessarily mean that the items found must be suppressed. Certainly, under the appropriate circumstances, a court may suppress evidence that was discovered as result of an illegal search and seizure. See State v. Ellis, 311 Kan. 925, 933, 469 P.3d 65 (2020) ("[A] court may suppress the 'primary evidence obtained as a direct result of an illegal search or seizure' and 'evidence later discovered and found to be derivative of an illegality'—the so-called '"fruit of the poisonous tree"'—if it finds officers obtained evidence in violation of the Fourth 14 Amendment.") (quoting Segura v. United States, 468 U.S. 796, 804, 104 S. Ct. 3380, 82 L. Ed. 2d 599 [1984]). But it is error to exclude evidence based on the fruit of the poisonous tree doctrine where there has been no unlawful police conduct. State v. Newman, 235 Kan. 29, 43, 680 P.2d 257 (1984). Here, Orpin has failed to show that Officer Schemper engaged in illegal or improper police conduct. Instead, the stipulated facts establish that Officer Schemper's actions conformed with existing Kansas law as set forth in MacDonald and its progeny. In light of the longevity of these cases, reasonable law enforcement officers—and the district court—were justified in relying on them. CONCLUSION In summary, we find that Officer Schemper had probable cause to search Orpin's car based on existing Kansas law. Even though the odor of burnt marijuana alone would be sufficient to establish probable cause, we also find that the totality of the circumstances supports the district court's determination that Officer Schemper had probable cause—accompanied by exigent circumstances—to search Orpin's vehicle. Accordingly, we affirm the district court's denial of Orpin's motion to suppress and we affirm his convictions. Affirmed. *** COBLE, J., dissenting: I respectfully dissent. While I agree with my colleagues' conclusion that State v. MacDonald, 253 Kan. 320, 324-25, 856 P.2d 116 (1993), has long held that the odor of marijuana alone constitutes probable cause to search a motor vehicle, I find it problematic when applied to the facts of this case. 15  The issue on appeal is limited to the existence of probable cause. As appropriately explained by the majority, probable cause is the level of persuasion necessary to lead a reasonably cautious person to believe that a criminal offense has been or is being committed. It is the reasonable belief that a specific crime has been committed, given all the information and fair inferences drawn therefrom available to the officer conducting the search at the time of the search. State v. Chavez-Majors, 310 Kan. 1048, 1055, 454 P.3d 600 (2019). Here, Officer Gary Schemper testified that he relied on the odor of burnt marijuana alone to justify the search. The officer's subjective reasons for conducting the search are unimportant; it is the objective reasonableness of the search that governs the Fourth Amendment inquiry. State v. Ingram, 279 Kan. 745, 752, 113 P.3d 228 (2005). But the record provides no other material facts that would suggest Joshua Charles Orpin was involved in a crime. His car was stalled at the side of the road in the middle of the day. There is nothing inherently nefarious about those circumstances. Schemper may have learned something of the nature of Orpin's previous arrests that suggested consistent drug use, but that information is not part of the record and, consequently, cannot form a part of the objective probable cause inquiry. Schemper agreed that he saw no contraband in plain view when he approached the Altima and spoke with Orpin. Nothing, other than the odor of burnt marijuana, suggests Orpin's involvement in specific illegal activity. In MacDonald, 253 Kan. at 324-25, the Kansas Supreme Court found that the odor of marijuana, detected by a law enforcement officer trained to detect such odors, constituted probable cause to search a motor vehicle. Both parties recognize the authority of MacDonald but provide competing arguments regarding its scope. The State contends that the issue is not whether the odor of marijuana was sufficient to prove Orpin was guilty of the crime of possession of marijuana but whether 16 the odor was sufficient to instill an objectively reasonable belief in Schemper that Orpin had possessed, or still possessed, marijuana. The probable cause standard does not require proof of a suspect's guilt beyond a reasonable doubt or even proof that guilt is more likely than not. But it does require sufficient information to lead a reasonable person in the position of the officer to believe that an offense has been or is being committed. Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 21, 290 P.3d 555 (2012). In the context of a search, probable cause requires reasonable belief that evidence of that crime will be discovered. Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996). But this standard does not permit a fishing expedition to find out whether an individual might have committed a crime or might be still committing a crime. Here, the relevant circumstances include the smell of burnt marijuana. This evidence is distinguishable from the smell of fresh marijuana because the smell of fresh marijuana would indicate the presence of marijuana in the vehicle at the time of law enforcement interaction, whereas, as Schemper conceded in his testimony, the smell of burnt marijuana suggests that the marijuana was used at some point in the past. The difficulty with marijuana today, as opposed to the issue presented to the Supreme Court in MacDonald 35 years ago, is that all of Kansas' state-line neighbors have legalized marijuana use for one purpose or for any purpose. So, when evidence that a suspect smoked marijuana in the past is adjacent to one of these state lines, this is not necessarily indicative of a crime unless the facts presented to the officer clearly indicate that marijuana use or possession occurred in Kansas. Given the relative relationship between the Kansas and Missouri state borders in this particular encounter, it is entirely speculative to conclude that Orpin's prior use or possession of marijuana occurred in Kansas. 17  Here, Orpin's potential past use of marijuana does not provide a specific, articulable basis for believing that he was currently in possession of marijuana when Schemper encountered him. Past conduct may provide a predictor of future behavior in some legal contexts. See In re K.R., 321 Kan. 578, 587, 582 P.3d 575 (2026). But past conduct does not create a reasonable belief that a person is currently involved in a crime, such as possession of a controlled substance generally requires. See State v. Graham, 244 Kan. 194, 197, 768 P.2d 259 (1989) ("Knowledge of the presence of a narcotic or dangerous drug as embraced within the concept of physical control with the intent to exercise such control is essential."). A person's past use of a controlled substance is not a guarantee that law enforcement will find that person in possession of a controlled substance at any point in the future. Accordingly, Orpin's past use of marijuana, without additional facts, does not support probable cause that a search of his vehicle would produce unsmoked marijuana. 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. Hubbard, 309 Kan. 22, 35, 430 P.3d 956 (2018). True, the smell of burnt marijuana may suggest the presence of evidence that marijuana had been smoked, such as the burned end of a blunt, charred rolling paper, etc. Such evidence may be circumstantial evidence of the commission of a crime. See State v. Flinchpaugh, 232 Kan. 831, 835, 659 P.2d 208 (1983) ("Discovery of a drug in a person's blood is circumstantial evidence tending to prove prior possession of the drug."). Here, though, the question is whether the burnt odor made it fairly probable that seizable evidence of a Kansas crime remained in the vehicle at the time of the search. Schemper acknowledged that the smell of burnt marijuana means that the marijuana could have been smoked earlier in the car, or the odor was simply retained in Orpin's clothing by being in the company of someone smoking marijuana somewhere other than the car. Though the car smelled of burnt marijuana, the smell does not necessarily 18 establish that the marijuana was smoked in the car or that it would be present at the time of search—a fact borne out by the absence of marijuana upon completion of the search. Most troubling in this case is the location of the vehicle searched—approximately one mile from the Missouri state line. Burnt—not fresh—odor of marijuana indicates spent smoke, and the proximity of Orpin's vehicle to the Missouri border makes it more plausible that any consumption was recent but elsewhere and left no seizable quantity. This reduces the fair probability that contraband remains. If the use occurred in Missouri, and no present possession remains in Kansas, there would be no crime. Here, odor alone without other indications of a crime—such as testimony regarding the strength of the odor, indicia of Orpin's impairment, drug paraphernalia, or residue in plain view—does not make it fairly probable that possessable residue or drug paraphernalia, as opposed to dissipated smoke, remains. As outlined by the majority, I concede that the Kansas Supreme Court has never concluded that an officer lacked probable cause to search when he or she has been trained to detect the odor of marijuana and testifies to the odor of marijuana in the location to be searched. But the cases which continue to uphold this rule are distinguishable on their facts. In State v. Crudo, although the court found probable cause to search the cab of a truck and extended t