Pot legalization bills prevent police searches of cars based on smell.
In most cases, as long as your recreational or medical marijuanas is properly contained, it will not cause your vehicle to become fragrant with its smell. There was a study recently published in March 2020 that looked into whether the human nose could even detect marijuana when it is properly contained.
The study found that, when marijuana was packaged in a plastic bag, it’s odor would still be detectable. However, they found that when marijuana is packaged in heavier plastics, or in vacuum-sealed bags, the odor was not able to escape.
So, Can Cops Detain You if They Smell Cannabis?
You may have hear of the “in plain smell” law enforcement doctrine. This is based on “common sense” law enforcement that would allow an officer to search your vehicle, or any property, if they smell marijuana. As marijuana becomes legalized across more states, these common sense doctrines are getting challenged more frequently.
Of course, this kind of doctrine may cause a slippery slope. In the past, it has not been unheard of for police officers to claim that they smelled marijuana in a person’s car when they suspected that person of carrying a much more dangerous or severe drug, like cocaine or heroin. This, in turn, infringes on people’s rights, because they should only be getting searched when there is a “probable cause”.
In many states where recreational marijuana is legal, it is still illegal to consume it in public spaces. However, when a person legally purchases marijuana, they do still have to get it from point A to point B. This is where some grey area may exist. As long as the person is not actively consuming marijuana while they are driving, or they did not consume any prior to getting into the vehicle, they are allowed to transport it back to their private property.
For reference, here’s a quick run-down of marijuana legality across the United States:
States where marijuana is legal: 13
Alaska, California, Colorado, District of Columbia, Guam, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, Washington
States where medical marijuanas is available: 21
Arizona, Arkansas, Florida, Georgia, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Montana, New Jersey, Oklahoma, Pennsylvania, Puerto Rico, South Carolina, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin
States where marijuana is decriminalized, with access to medical marijuana: 13
Connecticut, Delaware, Hawaii, Maryland, Minnesota, Missouri, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Rhode Island
States where marijuana is illegal: 6
Alabama, Idaho, Indiana, Nebraska, South Dakota, Wyoming
It is important to bear in mind, however, that even if state law has decriminalized marijuana, possession is still a federal offence.
Maryland – January 2020
In the state of Maryland, police officers are no longer permitted to depend on the smell of marijuana to justify a search.
In January 2020, there was a landmark decision made by the Court of Appeals (Maryland’s highest court), when they reversed a trial court’s ruling. The trial court allowed the search of defendant who’s vehicle carried the odor of marijuana. This landmark decision was made by Chief Judge Mary Ellen Barbera. She called for a review of facts beginning when the police officer first confronted the Defendant. This review was focused entirely on the process followed by the arresting officer, and did not focus on the officer’s findings.
When the Defendant was parked in his car, he was approached by police officers. The officers then recorded “observing” the smell of marijuana coming from the Defendant’s vehicle. The officers also believed that the smell was coming from a freshly burnt marijuana cigarette. What was important to the court was that, based on these observances, the Defendant was not in possession of any more than 10 grams of marijuana. Once the defendant was arrested, the officers found cocaine in his pocket.
This was the court’s process:
1. They evaluated the record, including the testimony and evidence.
2. The court acknowledged that the facts were most favourable to the State.
3. The court evaluated which crime was being investigated, and whether that led the arresting officers to believe that another crime was being committed.
4. The court ruled in favour of reversing the Defendant’s conviction.
In 2014, possession of less than 10 grams of marijuana was decriminalized. The evidence brought forward by the police was less than 10 grams of marijuana. As a result of nothing pointing to the Defendant having more than 10 grams of marijuana in his possession, there was no crime being committed, and therefore no reason for the officers to pursue further action. This means that the seizure of the Defendant’s cocaine was unlawful.
Nebraska – January 2019
The Defendant of this case sped into an intersection, across 2 lanes of traffic, and cut off a state trooper and one other driver in the process. Once the trooper successfully avoided an accident with the Defendant, she pulled the Defendant over. Upon approaching the Defendant’s vehicle, the state trooper records smelling marijuana coming from the vehicle. After the trooper told the Defendant that she could smell the marijuana, the Defendant denied having any marijuana on her person. The Defendant refused to consent to a search, arguing that she has never previously consumed marijuana, so her vehicle shouldn’t smell like marijuana.
Resulting from the mobile vehicle exception to the search warrant requirement, the trooper searched the Defendant’s car. Upon completing her search, the trooper found 4 grams of methamphetamine. The defendant was then arrested.
The Defendant then filed for an appeal, on the basis that the odor of marijuana should no longer provide authorities with probable cause for search. The Defendant argued that she was travelling from Colorado, a state where marijuana is legal, and therefore the odor was a result of legal consumption. Colorado is only 60 miles south of Nebraska, so this argument is technically viable.
Since marijuana is illegal in Nebraska, but legal in Colorado, the Defendant’s argument was that this would serve as a lawful explanation for the odor, and would not give the state trooper probable cause to search her vehicle.
The court ended up ruling that the trooper still had probable cause to search the Defendant’s vehicle. The Defendant also provided the courts with valid medical marijuana ID, but because the State’s laws do not provide immunity to those with medical marijuana IDs, the Defendant was not provided her appeal.
In many states, simply smelling marijuana in a person’s vehicle does not give officers probable cause to search. Before you drive anywhere with an open (or not completely sealed) container of marijuana, whether it be for medical or recreational purposes, it is important that you familiarize yourself with the laws in your state. The cases provided earlier in this article are great examples of the state agreeing that simply smelling marijuana is not probable cause of a crime, where in other instances, dependant on state laws, it is absolutely probable cause.
Ultimately, courts across the United States are still not in agreement of whether the odor of marijuana provides police officers with probable cause, so it is important to also do your research on previous court decisions when travelling with marijuana. Especially if you’re travelling from somewhere where marijuana is legal, to where marijuana is illegal.