Police need probable cause to search a vehicle without a warrant. Often, this is found no further than their own noses. The wafting smell of marijuana provides the requisite threshold to initiate a search. And after a search, what police find can be turned into much bigger, and more problematic, criminal cases.
Due to probable cause’s ubiquity, some have suggested law enforcement may occasionally fabricate stories about smelling marijuana smoke in order to justify a search without evidence of other contraband or illegal act. It’s a way to reverse engineer a search, taking it from illegal to proper, by simply referring to the odor. And, because of its intangible nature, no physical evidence is presented for review by the court. The “smell of marijuana” is frequently cited by police and is rarely challenged. It becomes a matter of which statement is more credible: that of police or criminal defendant.
Frequency Strains Credulity
While there is no way to know how often fabrication occurs, a judge in New York raised this issue in a stunning opinion. The case involved a driver who was stopped by police in the Bronx. An officer testified that he recognized the smell of burning marijuana coming from a vehicle. That provided ample support to search the car. As a result of the search, the officer found three small bags of weed on the center console of the car and an unlicensed firearm in the trunk.
But questions arose when photographs taken from the scene showed baggies containing green, leafy buds. They were perfectly arranged in line next to the stick shift. Almost too perfectly. One of the defendants in the case agreed that while there were drugs at the scene, they were hidden in his pocket. Once discovered, the police officer then staged them on the console. The defendants claim they hadn’t been smoking at the time of the search. Simply put, they stated there was no smell of burning marijuana because there was no burning marijuana.
Without that odor, the police would be left without the requisite probable cause, thus undermining the validity of the vehicle search without a warrant. And if the search was invalidated, the illegal gun police found in the trunk could be successfully suppressed.
In her opinion on the case, the judge wrote that officers claim to smell marijuana so often that it strains credulity. Not only did she question this cop’s claim that he smelled weed in the car, she argued the issue was so widespread that judges across the state should question the validity of these assertions. She wrote “(t)he time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop… (s)o ubiquitous has police testimony about odors from cars become that it should be subject to a heightened level of scrutiny if it is to supply the grounds for a search.”
Prosecution of Misdemeanor Pot Charges Decrease, yet it is used for Probable Cause
Marijuana possession and use remain unlawful, but arrests and prosecutions for such have decreased over the past several years. In Columbus, Ohio, the City Attorney’s Office announced it will no longer prosecute misdemeanor charges of marijuana possession, effective immediately. However, despite this initiative, citing an odor of marijuana remains a tool often employed by police to support a warrantless search of a vehicle. The New York judge’s decision highlights how marijuana remains a vital part of police work and strategy, even in places where it’s not the primary target.
Should you find yourself charged with a crime after a vehicle search, contact Columbus, Ohio defense lawyer, Joseph Edwards for a free consultation. Practicing for over 25 years, Attorney Edwards represents individuals at both the state and federal levels. Call today at 614-309-0243.
Goldstein, J. (2019, September 12). Officers Said They Smelled Pot. The Judge Called Them Liars. Retrieved from: www.nytimes.com/2019/09/12/nyregion/police-searches-smelling-marijuana.html
Rosenberg & Evans. (2019, August). Columbus Stops Prosecuting Misdemeanor Marijuana Possession Charges. Retrieved from: radio.wosu.org/post/columbus-stops-prosecuting-misdemeanor-marijuana-possession-charges#stream/0