Can the Scent of Marijuana Alone Justify a Search and Drug Testing at a Traffic Stop Where Marijuana Is Legal?
Posted on: 17 November 2016
California, Massachusetts, and Nevada just became the newest three states to legalize recreational marijuana, and four other states legalized marijuana's use for medical reasons. The rapidly changing laws regarding the legal use of marijuana in one form or another are giving rise to another legal issue: whether or not the scent of marijuana alone is enough to serve as probable cause for either a warrantless search of someone's vehicle or as the sole basis for a warrant.
If you're a driver in any of the states that have legalized marijuana for any reason, this is what you should know about the changing nature of the laws regarding an officer's probable cause to search your vehicle and demand a drug test.
In the past, the odor of marijuana was enough to lead directly to a drug-based DUI.
When the possession of marijuana was strictly illegal, an officer pulling you over for a traffic stop could easily assert that he or she smelled the drug when you rolled down your window. Depending on the circumstances and your state, that assertion alone would be enough for the police to either execute an immediate search without a warrant or get a warrant after a quick call to an on-duty judge.
You could also then automatically be subjected to chemical testing—again, based solely on the officer's assertion that he or she smelled marijuana in your vehicle—to determine whether there was any THC (the active ingredient in marijuana) in your bloodstream. Because THC stays in your bloodstream long after you actually use the drug, you could have ended up being charged with a drug-based DUI even if the officer's sense of smell was totally wrong, and you didn't have any marijuana in the vehicle.
Now, the legality of a "scent-based" search is much more questionable.
In states where the drug has been legalized for any use whatsoever, there's always the possibility that the scent the officer claims he or she smells is related to a perfectly legal activity. That's making it harder to justify a warrantless search of your vehicle to see what turns up, demand a drug test simply because the odor of marijuana is clinging to your clothes, or get a warrant based on the officer's sense of smell alone.
The problem for both drivers and police, however, is that the laws haven't really solidified in many states—which means that it pays to stay abreast of any new rulings as they come along.
Your rights may vary greatly depending solely on what state you're in when you're pulled over.
For example, Arizona now requires what the court is calling "odor-plus" in order for a judge to justify a search warrant. If you're pulled over for a broken taillight, and the officer smells marijuana in your car, that wouldn't be enough to qualify for a warrant because you weren't behaving in an impaired manner that suggests marijuana use. On the other hand, if the traffic stop is due to erratic driving or weaving in traffic, the officer can likely justify the search and any drug testing.
On the other hand, states like New Jersey (where marijuana is legal for medical use only) have taken a different approach. If you don't have a medical registry card on you, the odor of marijuana alone is still enough for the officer to presume that you're in illegal possession of the drug and subject you to a search.
If you live in a state where marijuana has been legalized for any reason, you may still find yourself subject to a search and drug testing after being pulled over for a simple traffic stop—solely because the officer claims to have a good sense of smell. However, don't presume that the search is legitimate or that your case is without hope—contact a DUI defense attorney, such as one from The Ryan Law Firm, to discuss the situation instead.
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