If you are pulled over for suspected DUI, and law enforcement officers smell weed, they can use that fact to search a car during a traffic stop. But what about searching a house after the smell of marijuana wafts through the neighborhood? These days, the odor of marijuana is often not enough by itself for police to search a home (unless you are in the minority of states where all cannabis use is prohibited).
As more and more states legalize marijuana, the question of how its smell constitutes evidence of a crime and permission to search without a warrant becomes more difficult.
Fourth Amendment Protections and Exceptions
The Fourth Amendment of the U.S. Constitution allows citizens to be free from unreasonable search and seizure. Typically, police officers are required to obtain a search warrant signed by a judge in order to search a house or car. However, if law enforcement sees something illegal in plain view, is afraid that there is an emergency situation, or that there might be potential destruction of evidence, then they may have an exception to the warrant requirement. That means they can enter your house right away.
These constitutional protections seem relatively straightforward. At least, until you come to the popular legal question of how to handle the smell of marijuana as the basis for a warrantless search when the possession of marijuana is no longer considered criminal activity in many states. Consequently, the reasonableness of any police search and criminal charges that may follow are intertwined with the specific laws of each individual jurisdiction. Appellate courts in Illinois and Pennsylvania, amongst others, have ruled that the smell of cannabis alone is not enough to justify a search. But you may get a different answer depending on where you live.
Is the Smell Enough?
Since the legalizing of marijuana has become more mainstream, courts have ruled that although the plain smell itself is not enough to allow police officers to conduct a warrantless search, it can be one of many factors considered in determining the legality of the search and the decision of whether to go forward. This is not limited to marijuana but is also true for other distinctive smells such as alcohol.
If you believe that you have been the victim of an illegal search, in violation of your Fourth Amendment right to be free of unreasonable search and seizures, contact a local criminal defense attorney. Police are notorious for pressing the limits of probable cause and warrantless searches, and every state's standard is different.
Since the laws are so jurisdiction-specific, if you are charged, you should definitely speak with a local criminal defense lawyer who is familiar with the criminal justice system and courts in your area for legal advice.
Related Resources:
- Maryland Court Rules that Smell of Marijuana Is Not Probable Cause (FindLaw Blogs)
- Using Drug-Sniffing Dogs and Canine Units (FindLaw’s Learn About the Law)
- School Searches and Student Rights (FindLaw’s Law and Daily Life)
