In The era of legal marijuana, the "Smell Test" for warrantless marijuana searches stinks

August 03, 2020 by G.W. Schulz

Police have been using the smell of marijuana as justification to conduct warrantless searches for decades. So long, in fact, that it’s become a convenient way for depicting stereotypical teenage troublemakers in pop culture, such as in “Fast Times at Ridgemont High” and “Dazed and Confused.”

But times have changed, and more than 30 states have passed some version of cannabis legalization or decriminalization. Increasing legal consumption challenges a long-standing doctrine police have relied upon for decades to search vehicles without first establishing probable cause and obtaining a warrant.

The “plain-smell doctrine” asserts that if an officer merely smells the presence of marijuana, they could commence with a search of the entire vehicle. Beginning in the 1970s and with the arrival of the War on Drugs, courts began to hold that if officers could see or smell contraband, a search could be conducted without a warrant. Ever since, the “plain-smell” doctrine has been used in tens of thousands of cases to justify a search.

Decriminalization and legalization promise to invalidate this justification, however, due to the increasingly complicated situations that could arise.

For example, what should police do if the vehicle has several people inside and some of the occupants have medical marijuna cards?

How can Officers distinguish between burned cannabis, which could indicate illegal driving under the influence, and fresh, unburned cannabis, which could indicate someone legally transporting it from a dispensary?

Can officers pinpoint the origins of a smell well enough in a populated area? Is the odor lingering in the vehicle from earlier in the day or even the week?

A Southern University Law Center study suggests courts are beginning to disallow evidence from smell-based searches and are seriously reevaluating the plain-smell doctrine.

“Police have been granted the authority to base a search on something that cannot be categorically proven: a claim based solely on their own sense of smell,” concludes the study.
“ …We must remove this rubber stamp from the hands of police and restore the right to privacy.”

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