A case recently came up in my area of Kentucky in a district court where a man had been convicted of growing and selling marijuana. The sheriff had drove by his residence on a hot day and smelled marijuana emanating from the man's property. The sheriff was able to narrow the location down to a mobile home which was on the man's property. The sheriff then obtained a search warrant to search the mobile home for marijuana, with the smell of marijuana being probable cause. Upon conducting the search, the sheriff found 154 marijuana plants and several firearms in the man's possession. The man is a convicted felon, so they were also seized. When the case went to court, the case was dismissed. The judge said that the smell of marijuana was not probable cause to have issued a search warrant. If the prosecutor will not ask for an appeal of the court's decision, can the sheriff ask for an appeal himself?

  • If dismissed by a judge, it is likely that jeopardy has attached and that any attempt to prosecute the offender would be unconstitutional, and something for which all parties involved in letting it go forward might be at risk of being sued. It is extremely difficult to sue a prosecutor for malicious prosecution, but violating double jeopardy would probably get you past that.
    – jmoreno
    Jan 23 at 3:03

1 Answer 1


Generally, no. The party to the action will be the State (commonwealth). The prosecutor acts as the agent of the state. The sheriff is not a party and cannot appeal.

  • Is there a way someone could appeal it? It seems unjust to allow them to get away with this and the elected prosecutor not wanting to do anything about it.
    – Kirk
    Mar 24, 2016 at 1:37
  • 3
    Generally not. There is the strong concept of prosecutorial discretion. The courts can step in for abuse of discretion. However, the decision not to appeal would be hard to show abuse of discretion (particularly for a possession case). Mar 24, 2016 at 1:40
  • Would another judge part of the district court be able to to step in? As I understand it, the man was charged with trafficking and being in possession of firearms while being convicted felon.
    – Kirk
    Mar 24, 2016 at 1:42
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    @Kirk A judge cannot just jump in to a case uninvited and say "I'm going to overrule this other judge." If neither party wants the ruling reviewed, it doesn't get reviewed. If you don't like that, feel free to vote for someone else for prosecutor next election.
    – cpast
    Mar 24, 2016 at 1:57
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    @Kirk even if the dismissal was based on faulty logic, it can only be reviewed if it is timely appealed by the losing party. Generally a party, who is not a party to a case cannot appeal.
    – Viktor
    Mar 24, 2016 at 5:28

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