Yes. Courts have found that if the officer has been properly trained and is capable of identifying marijuana, that can establish probable cause for a search of the vehicle.
Answers presented on this website are intended only for informational purposes and any use of the contained material is at the users own risk. Answers are intended exclusively as a public resource for general information, and this information is intended, but is not promised or guaranteed to be, correct, up-to-date, or complete. This material is not intended to constitute legal advice, as an agreement to create an attorney-client relationship with the law offices of Mitchell S. Sexner & Associates LLC, or the provision of legal services, and receipt of this information does not constitute such an agreement. If legal or other specific expert advice is required, then the services of a competent professional should be sought.O
There are several cases making their way up the appeals ladder that challenge the smell of fresh marijuana as probable cause for an exit order and to search a motor vehicle. Apparently the Supreme Judicial Court is in the process of making a body of law to address this exact issue. This stems in part from the recent decriminalization of possession of an ounce or less of marijuana. Since that is now a civil infraction, can the smell establish probable cause to believe there is criminal activity afoot? I do criminal defense. If you'd like a free half hour consultation, call me.
Attorney Lauren Craig Redmond ~ 617.953.6116 ~ No attorney/client relationship is established or implied by any email or phone conversation.
Since this question was asked by someone in Massachusetts, I'm going to assume you are asking about a traffic stop in MA. In that event, Attorney Sexner's answer would be incorrect. (MA has a new law about this.) In the case of Commonwealth v. Cruz, 459 Mass. 459 (2011) the Supreme Judicial Court decided that, based on the decriminalization of marijuana in 2008, probable cause for a search was not established merely by the odor of marijuana. Possession under one ounce for personal use is a civil offense with a maximum penalty of $100. However, the officer can determine that the driver is operating under the influence of drugs and proceed accordingly if the driver's ability to operate the vehicle safely appears to be compromised. This means that he can order the driver from the vehicle and conduct field sobriety tests. It would be a very difficult case to prosecute, especially if the traffic stop was initiated merely for a failure to signal. What were you charged with?
Providing users with information is not intended to create an attorney/client relationship. However, if in reading my response, you are interested in retaining me to represent you, please do not hesitate to contact me.
It also depends on other circumstances besides the odor of marijuana. A sudden and furtive movement can mean that the operator is hiding or reaching for a weapon and that, in combination with the lateness of the hour and whether the stop happened in a high crime area might justify a search for weapons that might incidentally lead to the discovery of a controlled substance.
The answer to this question is for informational purposes only and is expressly not legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers.
Attorney Leary is absolutely correct (if this was in Massachusetts). Commonwealth v. Cruz was decided about 6 months ago and is current law with regard to the smell of marijuana. Again, if there was a basis to believe that you were suspected of driving OUI (influence of drugs rather than alcohol), then the officer can pursue that theory. Make sure you are well represented!
Valerie Semensi @ 781.383.1940
If this is a Massachusetts case then the majority of the posters above are correct.
The smell of UNBURNT marijuana is being used as probable cause to search vehicles. There are some cases making their way up to appeals courts that challenge this assertion based on the decriminalization of Marijuana under question 2.
Since Cruz was decided the smell of burnt marijuana is no longer sufficient to justify a search. This technical difference is currently a gray area of Massachusetts law and once the cases that are on their way to appeals courts are decided the issue will be resolved but for now, at least in my experience, the smell of unburnt marijuana is being used by officers to justify exit orders and searches.
This information does not constitute legal advice. Without more information this is merely an answer to a question. If you would like legal advice tailored to your specific questions you should contact and retain a lawyer.