E-Newsletter Online Legal Questions Answered:

Question Title: Automobile search based only on smell of marijuana

E-Newsletter Edition: January 9, 2008

Response Provided By:
Brian Batterton

Always note that state law may be more restrictive on police power than the U.S. Constitution.

QUESTION:
Can you search a vehicle on the smell of marijuana alone?  If so what is the case law to support this?

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ANSWER:

Short Answer: 

Under the 4th Amendment to the United States Constitution, an officer’s sniff of an inanimate object in a public place would be no different than a dog sniff, which is not a search.  Once the officer smells the marijuana, he or she would have probable cause.  Under the 4th Amendment a warrantless search would be justified.

Note: Some states have placed further limitations on motor vehicle searches and may require a warrant once the vehicle has been immobilized.

One example case is State v. Jennings. ⁱ “Two Broward County deputy sheriffs stopped a vehicle for speeding and having no tag light. There were two people in the vehicle: the driver and Jennings, who was in the front passenger's seat. As they approached, both officers testified that they smelled the odor of marijuana coming from the open windows of the vehicle. Both deputies testified that they had training and experience in detecting marijuana by smell. One of the deputies asked the driver whether there was anything illegal in the vehicle, and the driver told him that there was marijuana in the driver's side visor. The deputy asked the driver to exit the vehicle for officer safety. The other officer asked Jennings to get out of the vehicle, because Jennings was very jittery, could not keep still, and was sweating profusely, as well as because of the strong odor of marijuana coming from the vehicle. Once outside, the deputy asked Jennings for consent to search, which the officer wanted to do for officer safety and to determine whether Jennings had illegal narcotics on him. Jennings did not verbally respond to the request to search, but gestured by nodding his head, lifting up his arms, and shrugging his shoulders. The search revealed a packet containing cocaine.”

In overturning the trial court’s suppression of the drugs in this case, the court held that the smell of marijuana alone provided the officers with probable cause to search the vehicle. 

Miller v. State,ⁱⁱ  involved a motor vehicle stop in Indiana after an officer observed a vehicle with no headlights on operating at night.  The officer stopped the vehicle.  During the stop, the officer detected the odor of marijuana.  Miller was unable to provide identification.  The officer handcuffed the two occupants and asked for consent to search the vehicle.  Based on state law grounds the court found the consent was not proper.  The court then turned to the fact that the officer had smelled marijuana and held that when an officer smells marijuana the officer has probable cause to believe the vehicle contains contraband and then may apply the motor vehicle exception to conduct a search of the vehicle. 

Note: In states that are more restrictive on motor vehicle searches, the officer may be required to obtain a warrant before conducting a search.  Some states may also be more restrictive on the odor of marijuana as probable cause, however the vast majority of courts find that the odor of marijuana does establish probable cause.ⁱⁱⁱ

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