Is It Legal to Search Based on the Smell of Marijuana

You were sitting in your car when a police officer knocked on your windows. As you turn it down, pungent marijuana smoke is sprayed at the officer’s face. The officer then asks you to get out of the car. He investigates your vehicle and locates marijuana. But he doesn’t have a warrant for the search! He claims that he doesn’t require it since you can smell marijuana. Is it a legal way to conduct an unwarranted search on the scent of marijuana?

Unreasonable Search and Seizure 

The Fourth Amendment, The law, prohibits excessive searches or seizures. In most instances, the police require warrants to search you and your items. To obtain a warrant, police must have probable reasons to believe that proof of a crime can be located. There are some situations where the search can be conducted without a warranty.

Plain View Exception 

The plain-view exception allows officers to take incriminating evidence without a warrant for search When the proof is clearly in sight. If a gun sits on the top of a table and is easily visible and readily observable, it is in plain view. If an officer has to lift a magazine to look at the gun beneath, it’s not in plain sight.

Plain Smell Exception? 

The Plain smelt theory is akin to the plain view with one exception. The argument is that smell must be sufficient to warrant probable cause for a warrantless search. However, not all courts agree with the plain smell exception. In United States v. Miller, the Ninth Circuit held that Plain smell, combined with a direct sight observation, is sufficient to justify warrantless searches. In this instance, the officer noticed an aroma of phenylacetic acids used to make methamphetamine emanating from the defendant’s vehicle. He observed a gun in plain view as he looked from the windows. The smell of phylactic acid and the idea of the gun gave an officer the necessary reason to search the vehicle without a warrant. In addition, courts have long accepted that the need for urgent circumstances could justify a warrantless search of the car if there’s probable justification. In People v. Kazmierczak, The Supreme Court of Michigan ruled that the smell alone is enough to warrant the warrantless inspection of a vehicle. However, in People are. Marshall, the court ruled that smell is a probable reason to obtain a warrant for a search but not a reason to warrant an investigation. The court wrote, “Even a most acute sense of smell might mislead officers into fruitless invasions of privacy where no contraband is found.” There is a split in the courts over the question of smell alone, and whether an unwarranted search due to cannabis smell is permissible depends on the law of the case in the state you live in. If a police officer has searched you in your car due to a marijuana smell and you are a local, experienced criminal defense lawyer might be able to determine the legality of the search. Related Resources:

Browse Criminal Defense Lawyers by Location (FindLaw’s Lawyer Directory)

When Can Police Search Your Home? (FindLaw’s Blotter)

3 Potential Ways to Challenge a Marijuana DUI Charge (FindLaw’s Blotter)

Is It Legal to Travel With Pot? (FindLaw’s Blotter)

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