The expansion of legalized marijuana use and the changing marijuana laws are wreaking havoc on what law enforcement consider probable cause and the justification for certain searches.
The Fourth Amendment of the United States Constitution states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”
Simply put, if you expect it to be private, cops must get a warrant to search it. And in order to get the warrant, they need reasonable and trustworthy facts that they’re going to find illegal.
Though there are exceptions to the need for a warrant, one of which includes the “automobile exception.” If an officer has probable cause to believe that a vehicle contains illegal or is engaged in illegal activity, they need not get a warrant to search it.
For years, officers claimed, and as became the standard, that the distinct smell of marijuana is what provided the officers the probable cause needed to search a vehicle without a warrant.
But what about when a perfectly sober person drives a passenger who smells like marijuana because they use it for, say, medical purposes? In other words, if it now commonplace that passengers, or even drivers, can smell like marijuana (since it is legal), can we continue to allow cops to use it as justification to search without a warrant?
In one Pennsylvania court case, a judge made the correct ruling that the state troopers lacked probable cause to search the car of the defendant. The defendant had been sitting in the passenger seat while his wife had been driving the vehicle. When she failed to properly stop at a railroad overpass, officers pulled them over and then was able to “smell the odor of both burnt and raw marijuana through the open window of the vehicle.” The defendant was a medical marijuana card holder and showed it to the police. Despite this, the officers claimed that they still had the right to search the vehicle.
However, the court judge ruled that the troopers did not have further cause to search his vehicle because he produced his card at the time of the stop. Thus, she determined the subsequent search of his vehicle to be unlawful and that all evidence collected from the vehicle search should be suppressed. You can read more about the case through this link: https://assets.documentcloud.org/documents/6246965/Commonwealth-of-PA-vs-Timothy-O-Barr.pdf
In another case, a Maryland officers searched a vehicle based on the smell of marijuana. They found a joint containing less than 10 grams of marijuana, a civil offense. The officers then arrested the defendant at the scene and searched his person, which resulted in the discovery of cocaine in his pocket. Although the vehicle search was permitted, the judge decided that there was no further reasonable cause for the officers to arrest and search his person. According to the Maryland Court of Appeals, “this is based on the heightened expectation of privacy one enjoys in his or her person as compared to the diminished expectation of privacy one has in an automobile.”
Alongside marijuana, in 2018 the United States government passed the Farm Bill which federally legalized hemp production, raising further concerns regarding this issue. The smell of marijuana and hemp and nearly identical.
In some states, such as Florida, prosecutors are pushing for a new “odor-plus” standard where the smell of marijuana may still be used as cause, but only as one factor out of many in determining probable cause.
The judicial system’s acknowledgement that times are changing is promising. However, let’s hope that the wheels of justice don’t spin so slow, as they unfortunately often do, that it can’t keep up with what we know to be correct approach to marijuana.