I have recently come across a number of clients that are stopped on routine traffic violations or minor traffic violations and have their vehicles searched after officers claim to detect an "odor of marijuana". These are always touchy subjects for me as I have friends in Law Enforcement and I know many great officers around the Little Rock area. But, do I believe that officers can be mistaken in their belief of smelling marijuana? Yes, based on my client's cars being searched and no marijuana, unburnt or burnt, being found.
I even have a friend who was pulled over, an attorney I might add, and the officer claimed to smell marijuana and I can vouch that my friend does not smoke marijuana nor does anyone he associates with smoke marijuana. After this traffic stop the officer stated that there was a smell of marijuana and my friend stated that it was most likely the trash in his car and that the officer is free to search. The officer did not search the car and just wrote the traffic violation and that was that.
But, why do officers search vehicles after detecting an odor and how can they?
For a search or seizure to be reasonable under the Fourth Amendment, it must be based upon probable cause and executed pursuant to a warrant. This requires a two-step analysis. First, there must be probable cause. If probable cause exists, then a search warrant must be obtained unless an exception to the warrant requirement applies. If the state fails to satisfy either step, the evidence seized in the unreasonable search must be suppressed.
Let's use an example: Say Person A is pulled over for speeding and the officer approaches and asks for license, registration, and insurance. Then says he detects an odor of marijuana. He asks Person A to step out of the vehicle because he believes there is marijuana in the car and he is going to search. Let's say Person A has nothing in the car and the search turns up nothing. Person A receives a speeding ticket and is on their way.
In our example, once the law enforcement officer states that there is an “odor of marijuana” then the officer has probable cause to believe that a vehicle contains contraband, the officer then may search Person A's vehicle. It does not matter whether the officer finds marijuana at all or whether he finds pills that give no odor. All the officer needs is probable cause (i.e., “odor of marijuana”) to search and courts have long acknowledged that the “odor of marijuana” constitutes a sufficient basis to justify the search.