If you’ve been smoking weed for a long time, it’s highly likely you have found yourself in a scenario where you are getting searched by a police officer for one reason or another. One of the most daunting experiences for any stoner is getting pulled over with weed in the car; because as we know all too well, all a cop needs to do is simply claim that they “smell marijuana” in your vehicle and next thing you know you’re standing on the side of the road while they call for backup and tear your car apart looking for anything illegal they can find.
Is it fair? Of course not! But the more important question here is whether this age-old search tactic is legal or not, and if it will hold up in the court of law. The answer: it’s complicated and depends on where you are, who you ask, and the specifics of your situation. Police officers have relied on odor as probable cause for decades, and it was justified when cannabis was illegal across the board. But if you now live in a state where cannabis has been legalized, especially for recreational use, marijuana odor is no longer an ironclad reason to search without a warrant, because possessing it is not a crime in those states.
Cannabis laws in the USA can certainly be complicated, especially when it comes to knowing your own rights and how to protect yourself from unreasonable actions by law enforcement. We hope this article provides the insight you were looking for. To read more stories like this one, and for exclusive deals on flowers, vapes, edibles, and other products, remember to subscribe to The THC Weekly Newsletter. Also save big on Delta 8, Delta 9 THC, Delta-10 THC, THCO, THCV, THCP & HHC products by checking out our “Best-of” lists!
The 4th Amendment and Probable Cause
Citing the Constitution of the United States of America, the fourth amendment is as follows: “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 warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
It’s generally accepted that a warrantless search of someone’s home is unjust, but the extent to which a person’s vehicle is protected under this statute remains up for debate. Despite pretty clear-cut verbiage in the fourth amendment, there exists a clause known as the “automobile exemption”. The automobile exemption was first established in the 1925 supreme court case, Carroll vs The United States.
Simply put, the automobile exception states that, because automobiles can move quickly from one location to another – carrying contraband and evading law enforcement – it would be unrealistic to require officers to get a warrant before searching the car. In a state where cannabis is illegal, the smell of cannabis is enough to lead officers to reasonably believe that a crime is being committed.
One might assume that this exception means that police officers have unlimited access to search the cars of all citizens as they see fit, but that is NOT the case. There are stipulations and it’s important to know your rights whenever you’re on the road. “The automobile exception is not a categorical one that permits the warrantless search of a vehicle anytime, anywhere, including in a home or curtilage,” says Supreme Court Justice Sonia Sotomayor.
So again, there is a lot of ambiguity there because the conditions determining whether the automobile exception can be used vary dramatically from state to state, county to county, and even city to city. Then it comes down to if the person pulled over is even committing a crime, which depends on they much you have, whether they have a medical card or not, if something was left in plain sight, or if the officer was given permission to search the car, or if another crime was being committed.
States can always implement higher standards than what is required by the fourth amendment, to further protect residents from unlawful searches and seizures, but they cannot allow conducts that violate the constitution in any way. If one believes their fourth amendment rights have been violated, a bivens action can be filed against federal law enforcement officials.
Recent Ruling in Illinois
What sparked my renewed interest in this topic is a news report I read from the Chicago Sun Times, in which authorities pulled over a vehicle and conducted a warrantless search that led to the arrest of the vehicle’s passenger for cannabis possession.
According to the court order, an Illinois State Trooper pulled over a grey Chevy Impala on Interstate 88 in rural Whiteside County on December 3, 2020. During the process of requesting identification, the trooper stated that he smelled “raw cannabis”, at which point the passenger, defendant Vincent Molina, provided his state-issued medical cannabis card.
Notwithstanding, the police officer proceeded to search the vehicle. He found 2.6 grams of weed and Molina was arrested for misdemeanor possession. For obvious reasons this arrest is utter nonsense, starting with the fact that recreational cannabis was legalized in Illinois on January 1, 2020, almost a full year before Molina’s arrest. Additionally, Molina was not just a recreational user but a medical patient.
Molina’s defense lawyers, James Mertes and Nichalas Rude, filed a motion to suppress the evidence, saying “the cannabis odor could not be used as a basis for police to search vehicles after the recent legalization of cannabis.”
Associate Judge of the 14th Judicial Circuit, Daniel J. Dalton, agrees with his attorneys, and ruled that Molina, “…did not indicate any other reason for his suspicions or his search other than the smell of raw cannabis,” and that, “Molina did provide a medical use license to (the trooper) prior to the search of the vehicle and there are a number of wholly innocent reasons a person or the vehicle in which they are in may smell of raw cannabis.”
All in all, it’s a pivotal case for The Prairie State which helps determine what is considered probable cause and sets new standards for how officers will conduct future searches and seizures. “I am honored to have been part of such an important decision. This case was much more important than me,” Molina said. “It was about our right to be free from unreasonable searches for legal conduct. I am just grateful to have been a part of protecting that right.”
No Confusion in New York
New York is one of the few states that actually wrote into their legalization law, which passed in March 2021, that cannabis odor is can no longer be used by law enforcement as a sole legitimate reason to conduct a vehicle search.
Under the updated policy, the only time officers are permitted to search a vehicle (as it pertains to cannabis), is if they believe the driver is under the influence of weed, or if they physically see the driver smoking or vaping while operating a vehicle, or while sitting inside of a parked vehicle.
Additionally, “the trunk may not be searched unless the officer develops separate probable cause to believe the trunk contains evidence of a crime.” So, if you want to be extra careful in NY, make sure to keep your stash in the trunk.
“I don’t think any other state was as clear-cut in removing marijuana very clearly from the universe of things that law enforcement can use, and certainly the odor of marijuana, as a reason to search a vehicle,” said Melissa Moore, New York state director for the Drug Policy Alliance.
Cases in Other States
In the other 18 states that have legalized cannabis, as well as Washington D.C., cases where cannabis odor was used as probable cause are still clogging up the court systems. Luckily for us, most of the court ruling have been in favor of the defendants.
For example, in Maryland, only medical cannabis is fully legal but possession of 10 grams or less for recreational use has been decriminalized since 2015. For reference, decriminalization means that even though cannabis is still not completely legal, it’s now a civil matter, rather than a criminal one, if you get caught with it. In April, an appellate court determined that “odor of marijuana by itself does not provide reasonable suspicion of criminal activity”.
In Colorado and California, the Supreme Courts throw out cases like this all the time, claiming there is no justification for searches or drug sniffing dogs to look solely for cannabis, now that it is legal in both of those states and possessing it is no different than having unopened containers of alcohol in your car.
In Michigan, another legal, adult-use state, the high court explicitly stated that “evidence of illegal guns and drugs should not be suppressed,” and that cannabis odor was “sufficient to justify a warrantless search.” Same goes for Florida, where only medical cannabis is legal but discussions of a recreational market are looming.
Rooted in Racism
As with many of our current drug laws, it’s safe to assume that there are some racist undertones to the way vehicle searches are often conducted. Statistics do exist to cement this theory, for instance, black residents make up 50 percent of the population of Newark, New Jersey, but were involved in roughly 80 percent of police department vehicle searches. Overall, policies that hinder automobile searches are supported by the nation’s most prominent civil rights activists.
“Police believe that if they stop more Black people, they’re going to pick up more drugs, because that’s what they’ve been taught,” said Meghan Matt, who works for a criminal defense and civil rights litigation attorney in Baton Rouge. “But it is statistically evident that Black and White people use marijuana at the same rate.”
Data from as far back as 1999 states that African American and Hispanic motorists are pulled over at rates much higher than whites, yet those searches are “equally or less likely to yield contraband.”
Kelsey Shoub, an assistant professor of political science at the University of South Carolina explored this theory further in her 2018 book, Suspect Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race; which examined 14 years-worth of traffic stop data from North Carolina (not an error, research was not conducted in the same state as the University).
Shoub’s data was very telling and left little wiggle room to assume anything other than a systemic, racially-charged issue that seriously needs overhauling. Overall, black Americans where 63 percent more likely to be stopped on the road, even though they drive 16 percent less than whites. Taking into consideration that difference of time spent on the road, blacks where about 95 percent more likely to be stopped.
Furthermore, black Americans were 115 percent more likely to be searched during traffic stops than white Americans (5.05 percent for blacks and 2.35 percent for whites), BUT, contraband was found more often in the vehicles of white drivers.
“For me, there are a few big takeaways from the data, and the first two are probably not surprising,” says Shoub. “The first is that ‘driving while black’ is very much a thing; it’s everywhere and it’s not just a North Carolina or a Southern problem but across the United States,” Shoub says. “The second thing is that it appears to be more systemic than a few ‘bad apple’ officers engaged in racial profiling.”
Thoughts from Law Enforcement
“It’s an extraordinarily gray area,” said Mark Reene, prosecuting attorney for Tuscola County, Mich. “These are going to be decided very much on a case-by-case basis, and they’re going to be very fact-dependent. And what’s ultimately going to happen is this matter will end up in front of the United States Supreme Court.”
Because there is so little clarity on this subject, officers are increasingly reluctant to conduct vehicle searches, which means that potentially dangerous contraband is going unnoticed at a much higher rate. Making matter worse for law enforcement is the variation in laws, like different restrictions in different counties or only being able to search certain areas of the car – which makes it all the more confusing when an officer is working in the moment.
“It’s going to, without a doubt, lead to less searches of vehicles, which would then lead to less guns being recovered and significant drugs being recovered,” said Mary Tanner-Richter, vehicular crimes bureau chief in the Albany County district attorney’s office in New York. “I mean, I think it’s hard to argue against that being the reality we’re going to face.”
Tanner-Richter also mentioned that during her 16 years working for the state’s traffic safety division, she has seen a large portion of firearms and hard drugs confiscated during what started as routine traffic stops. Until now, her office encouraged police to utilize this search protocol whenever possible.
“That’s how they found Ted Bundy. That’s how the Oklahoma City bomber got caught. And quite often, that’s how they’re getting guns and drugs off the street,” she added. “They [police] are now losing a huge tool in their investigation of drugs and guns.”
Again, there is no clear-cut answer on whether cannabis odor can be used as probable cause to conduct a warrantless search of a vehicle. It all depends on where you are, what products you have and how much, who pulls you over, and so forth. It does seem as though the odor excuse is carrying less weight as legalization sweeps through the nation.
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Disclaimer: Hi, I’m a researcher and writer. I’m not a doctor, lawyer, or businessperson. All information in my articles is sourced and referenced, and all opinions stated are mine. I am not giving anyone advise, and though I am more than happy to discuss topics, should someone have a further question or concern, they should seek guidance from a relevant professional.
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