This article was originally published on the Marijuana Patients Organization site on June 8, 2014.
Imagine you are pulled over while driving a car, or stopped walking down the street, and a cop says to you, “I smell marijuana.” Can they search you or your car?
According to case law the officer can search you based on the following factors:
- Consent. If an officer asks for consent to search a vehicle or you and you say ‘yes’, the officer can search the entire vehicle and/or you. You have the authority to withdraw your consent and/or limit the areas you can search. (2) through (4), consent makes no difference. If the police can meet one of these requirements, they will legally search you or your car with or without your consent.
- Probable Cause. If an officer develops probable cause during a traffic stop, the officer may search the vehicle without a warrant. This is commonly called the “motor vehicle exception” to the search warrant rule. The authority for the police to do so was first established under a US supreme court case called Carroll v. United States. The courts have since expanded on this case and allowed the police to search items within the vehicle regardless of who claims ownership of the items. Under this technique, the police can only search areas where it is reasonable to believe the contraband they are searching for may be found. For example, if the police believe they are lookng for a rifle, they would not be able to search a purse. However, if they find the rifle and now believe they might be looking ammunition, the search of the purse is good.
- Pursuant to arrest. If the police arrest you for a bookable offense while operating a motor vehicle, they may search the areas under your control (including the passenger compartment and possibly other areas of the car) for marijuana that you may have discarded. This authority is established under case law named Chimel v. California.
- Inventory search. If the police have the authority to tow your car, they may search it under the premise that they need to inventory all items contained within the car prior to towing the car. These searches were upheld under the community caretaking doctrine established under South Dakota v. Opperman.
Case law is more clear when you are not driving or in public and possess marijuana (medical or recreational). The courts have dictated private static places such as homes, offices, hotel rooms, and the like where one would have a reasonable expectation of privacy.
While case law has stated the smell of marijuana alone does not constitute a search, especially for medical cannabis patients, some courts have not adopted this philosophy. The vast majority of marijuana arrests occur during traffic stops when an officer smells cannabis.
The lesson to be learned here, no smell may be your best solution. Remember if you must travel with marijuana, hide the smell. There are many products on the market that claim to eliminate or mask the odor of cannabis, our sponsor Cannalock has an innovative product that claims to keep the smell from even the most trained noses, canine cops.
Safe travels and health.