Odor of marijuana and probable cause for vehicle search. [Archive] - Glock Talk

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Reyn
08-18-2011, 14:27
Has it changed where an officer has to distinguish between burnt marijuana and raw marijuana when going into the trunk of a vehicle?

glockurai
08-18-2011, 14:47
Not that I've heard of.

RocPO
08-18-2011, 14:58
No. Possession of marijuana is a crime as well.

ctaggart
08-18-2011, 15:00
Has it changed where an officer has to distinguish between burnt marijuana and raw marijuana when going into the trunk of a vehicle?

What state are you in? Case law is going to dictate a lot of your search and seizure.

merlynusn
08-18-2011, 15:22
If I smell marijuana that has been burned. It still gives me PC to believe evidence of a crime may be in the vehicle. Therefore, I can get into the trunk as well. I'm in NC.

4949shooter
08-18-2011, 15:58
It hasn't changed. Odor of burnt will get you the entire vehicle. Unless there is case law in your state that says otherwise.

Here in NJ, we are obtaining consents or search warrants in order to search a vehicle based on the probable cause resulting from odor of marijuana. But that's our state, and a few others.

Though I am not sure if all agencies are on board with this yet.

ray9898
08-18-2011, 16:40
The whole shebang.

phuzz01
08-18-2011, 16:46
The one case that I am aware of that contradicts the rest of the country is Massachusetts. They have made possession of small amounts of marijuana a civil infraction, not a crime. So, there is new MA Supreme Court case law stating that odor of burnt marijuana alone is no longer probable cause that a crime was committed. In fact, not only did they rule that it is not probable cause to search, they ruled that it was not sufficient to order the driver or passengers to exit the vehicle.

Big House
08-18-2011, 17:02
The one case that I am aware of that contradicts the rest of the country is Massachusetts. They have made possession of small amounts of marijuana a civil infraction, not a crime. So, there is new MA Supreme Court case law stating that odor of burnt marijuana alone is no longer probable cause that a crime was committed. In fact, not only did they rule that it is not probable cause to search, they ruled that it was not sufficient to order the driver or passengers to exit the vehicle.

They can't be charge with DWI/DUI?

DaBigBR
08-18-2011, 17:31
The one case that I am aware of that contradicts the rest of the country is Massachusetts. They have made possession of small amounts of marijuana a civil infraction, not a crime. So, there is new MA Supreme Court case law stating that odor of burnt marijuana alone is no longer probable cause that a crime was committed. In fact, not only did they rule that it is not probable cause to search, they ruled that it was not sufficient to order the driver or passengers to exit the vehicle.

I can kinda see what they were driving at saying that it's not PC that a crime was committed (doesn't mean I agree), but the last part's nutty...flies in the face of established law that does not require any reason to order the occupants to exit the vehicle.

They can't be charge with DWI/DUI?

Not very successfully based merely upon the presence of an odor.

Reyn
08-18-2011, 17:50
I was looking here. It's so long i think i became confused and interpreted it wrong.

http://www.law.ku.edu/publications/lawreview/pdf/5_Bender_Final.pdf

RetailNinja
08-18-2011, 18:14
The one case that I am aware of that contradicts the rest of the country is Massachusetts. They have made possession of small amounts of marijuana a civil infraction, not a crime. So, there is new MA Supreme Court case law stating that odor of burnt marijuana alone is no longer probable cause that a crime was committed. In fact, not only did they rule that it is not probable cause to search, they ruled that it was not sufficient to order the driver or passengers to exit the vehicle.


Apparently judges in MA smoke weed...

Big House
08-18-2011, 18:31
I can kinda see what they were driving at saying that it's not PC that a crime was committed (doesn't mean I agree), but the last part's nutty...flies in the face of established law that does not require any reason to order the occupants to exit the vehicle.



Not very successfully based merely upon the presence of an odor.

With the odor usually associated as marijuana, burnt or otherwise, this is not enough to establish cause to test at roadside? WTH is that state doing to protect its citizens? :dunno:

MeefZah
08-18-2011, 22:45
Here in NJ, we are obtaining consents or search warrants in order to search a vehicle based on the probable cause resulting from odor of marijuana. But that's our state, and a few others.

Vehicle exception doesn't apply?

If they refuse consent do you stand at the window for a few hours waiting on someone else to get the warrant? how do you justify the length of detention? I'm confused...

DaBigBR
08-19-2011, 00:02
With the odor usually associated as marijuana, burnt or otherwise, this is not enough to establish cause to test at roadside? WTH is that state doing to protect its citizens? :dunno:

Yes, it most likely does, but the issue here is the ability to search the car. After the person is (presumably) arrested for driving/operating while/under impaired/intoxicated/the influence (whatever they call it there), then I would think that you should still get the car under Belton/Gant, but that would be the next test case for them, I suppose.

Vehicle exception doesn't apply?

If they refuse consent do you stand at the window for a few hours waiting on someone else to get the warrant? how do you justify the length of detention? I'm confused...

Indeed that is how it works in places that do not recognize Carroll. The length of detention is justified the same way it would be if you were holding a residence to get a search warrant.

4949shooter
08-19-2011, 04:37
Vehicle exception doesn't apply?

If they refuse consent do you stand at the window for a few hours waiting on someone else to get the warrant? how do you justify the length of detention? I'm confused...

DaBigBR nailed it. Unfortunately, here in the Peoples' Republik, the courts do not hold there to be exigency on a motor vehicle stop. In other words, they say we have the time to get a warrant. The only way around this is through a consent search.

State of NJ vs. Juan Pena Flores set the stage for this.

State of NJ vs. Charles Fuller anchored it.

steveksux
08-19-2011, 17:10
Apparently judges in MA smoke weed...
And apparently "Its just weed, man" is established case law... :rofl:

Randy

MeefZah
08-19-2011, 19:59
DaBigBR nailed it. Unfortunately, here in the Peoples' Republik, the courts do not hold there to be exigency on a motor vehicle stop. In other words, they say we have the time to get a warrant. The only way around this is through a consent search.

State of NJ vs. Juan Pena Flores set the stage for this.

State of NJ vs. Charles Fuller anchored it.

That is insane.

If I smell weed I am getting in the car, period, right now, no warrant needed.

I had no idea that wasn't a nationwide thing.

phuzz01
08-20-2011, 01:46
flies in the face of established law that does not require any reason to order the occupants to exit the vehicle.

It flies in the face of established FEDERAL law. However, individual states can interpret their own constitutions to grant rights and protections beyond what is afforded by federal law. Many states have interpreted their constitutions to put additional restrictions on law enforcement during investigatory detentions or warantless searches. In the MA case, the MA Supreme Court has decided that the police need reasonable suspicion of a crime (as opposed to a mere civil infraction) to order someone to exit the vehicle. If the police had indicators that the driver was impaired, that would be sufficient. However, the mere odor of burnt marijuana alone (especially with multiple occupants) is not reasonable suspicion that the driver is impaired.

4949shooter
08-20-2011, 04:35
I had no idea that wasn't a nationwide thing.

Unfortunately, it is not any more.

COLOSHOOTR
08-20-2011, 05:03
Lets say you are in one of those crazy states that will not allow you to search due to the odor. We've established that the odor of burt MJ would allow you reason to peform roadsides / a DRE exam to determine of the operator is DUI/DWAI. Say the operator bombs the roadside and you don't want to stretch the Gant ruling (although looking for the joint could be considered evidence connected to the crime but anything else located would establish need for a warrant to complete a further search) what stops you from doing in inventory search (depending on policy) and towing the car?

4949shooter
08-20-2011, 05:24
what stops you from doing in inventory search (depending on policy) and towing the car?

Exactly. It isn't my agency's policy.

DaBigBR
08-20-2011, 11:42
Lets say you are in one of those crazy states that will not allow you to search due to the odor. We've established that the odor of burt MJ would allow you reason to peform roadsides / a DRE exam to determine of the operator is DUI/DWAI. Say the operator bombs the roadside and you don't want to stretch the Gant ruling (although looking for the joint could be considered evidence connected to the crime but anything else located would establish need for a warrant to complete a further search) what stops you from doing in inventory search (depending on policy) and towing the car?

The scope of your search remains the smallest piece of evidence, so if you're looking for a joint (or a marijuana seed), and find a gun, I can't imagine that there is anywhere in that car that a further search (subsequent to finding said gun) would require you to expand your scope at all.

Granted we're not talking about states that necessarily make sense.

ateamer
08-21-2011, 13:26
I'll tell you one particularly nice thing about working in California: State law (ballot proposition passed by the voters in the early 90s) requires that California courts follow federal rules of evidence. Our judges, even the state supreme court, must allow evidence that is admissible under federal guidelines. They absolutely cannot make more restrictive exclusionary rules.

silverado_mick
08-21-2011, 20:06
That is insane.

If I smell weed I am getting in the car, period, right now, no warrant needed.

I had no idea that wasn't a nationwide thing.

That's how it is in PA too. I smell it and the "plain smell doctrine" (that's academy terminology there ahaha) says I can search for it and go get it. I can't imagine my Lt's reaction if I told him I wanted to go get a search warrant for a car based on the smell of weed.

I'll tell you one particularly nice thing about working in California: State law (ballot proposition passed by the voters in the early 90s) requires that California courts follow federal rules of evidence. Our judges, even the state supreme court, must allow evidence that is admissible under federal guidelines. They absolutely cannot make more restrictive exclusionary rules.

That IS a nice perk of working in Cali, but since damn near everything is legal out there except for enforcing the law and owning cool toys, I think I'll stay on the East (Right) coast.

cowboywannabe
08-21-2011, 20:08
It hasn't changed. Odor of burnt will get you the entire vehicle. Unless there is case law in your state that says otherwise.

Here in NJ, we are obtaining consents or search warrants in order to search a vehicle based on the probable cause resulting from odor of marijuana. But that's our state, and a few others.

Though I am not sure if all agencies are on board with this yet.

im not following this. if you have probable cause, why ask consent or get a search warrant?

o.k., i read some more posts. so in nj, the smell of burned or raw marijuana is NOT probable cause and a motor vehicle that can leave actually cant leave.

phuzz01
08-21-2011, 21:04
o.k., i read some more posts. so in nj, the smell of burned or raw marijuana is NOT probable cause and a motor vehicle that can leave actually cant leave.

Actually, it is probable cause, however probable cause alone is not sufficient for a warrantless search of a motor vehicle. In some states, you have to have probable cause AND either a search warrant or a recognized exception to the search warrant requirement (such as consent or exigency).

ateamer
08-21-2011, 21:19
Actually, it is probable cause, however probable cause alone is not sufficient for a warrantless search of a motor vehicle. In some states, you have to have probable cause AND either a search warrant or a recognized exception to the search warrant requirement (such as consent or exigency).
A vehicle is in and of itself an exception.

phuzz01
08-21-2011, 21:30
A vehicle is in and of itself an exception.

It is under federal law (Carroll v. US), but it is not an exception in many states.