November 2011

Can cops really search your car if they smell weed???


Is the smell of marijuana in your car enough to allow a cop to get you out of the car and search the entire thing?  In short, yes.  The longer answer is that law actually says they should NOT be doing it. But do they? Of course.  And many attorneys assume they can and that a cop’s word about smelling marijuana is impervious and don’t try to fight it.  But they should. 

Here’s the run down: 

You and I have a Fourth Amendment right to be free from unreasonable searches and seizures by law enforcement.  Our forefathers thought this was important because the British government could enter anyone’s house to search & arrest them, without any cause whatsoever.  Just because some snooty constable didn’t like they way a guy dressed, the government could issue “general warrants.”  Well our early government thought that was wrong and thankfully drafted the Fourth Amendment.

This Amendment limits the power of the federal (and now state) governments from searching your house  or arresting (a.k.a. seizing) you or your stuff unless they have a warrant supported by probable cause.  Probable cause to search is generally found where a reasonable person would believe, based on all circumstances known to the officer at the time, that a certain place contains evidence of a crime.  But don’t be fooled by how easily probable cause can be defined here, because its a difficult concept for lawyers and judges alike. 

In a case where there was probable cause to believe a car contained evidence of a crime, such as where an officer personally observed a driver chugging a bottle of tequila while on the freeway, the officer could certainly get a search warrant for that car.  That seems fair, right? But cars move, which means that, by the time an officer got a warrant, the tequila chugging driver would be long gone, probably passed out on his couch at home watching the Chargers lose.   So some judges realized that cars are too “readily mobile” to require search warrants and the judges allowed law enforcement to search a car without a warrant whenever they have probable cause to believe the car will contain evidence of a crime (like empty tequila bottles, etc.).  

So, again, where cars are involved, cops don’t need a warrant to search anywhere in a car they claim evidence of a crime might be (including your trunk or a locked briefcase).  We all have a reduced privacy interest in our vehicle precisely because we can use them to escape.  (Though you’d all know that I can’t get away too fast if you’ve seen my old Rav4, but that’s beside the point.)

Of course, the automobile exception isn’t the only way to get into your car.  They can search your car if they’ve already arrested you or if they are going to impound it, since its now inventory.  However, here we’re assuming a scenario of one sober man with fresh, unburned cannabis in his car, so I’ll leave a discussion of these other exceptions for another scenario.

So, you’re driving down the road and you get pulled over because you have a taillight out and you have some cannabis in the car with you.  The officer walks up to you and asks for your ID and registration, which you politely hand him through the slightly rolled down window.  He or she leans in to grab your documents and says, “do you have any marijuana in there.”  Knowing that you do and that it’s the sticky icky icky icky, so you know it reeks, you reply “Yes. But I have a recommendation!” 

The cop may check your recommendation or they may not.  At this point, its almost irrelevant in their mind.  All they’re thinking is “yes! I smelled it, so I can get in here!” And then they may pull you out and start searching, though they may let you go if you have (1) your medical recommendation documents, (2) they only find a small amount of cannabis (generally under 3 pounds in Sonoma County), and (3) there is no other evidence of sales (like your own incriminating statements/a scale/pay-owe notes/large amounts of cash) or (4) of driving under the influence (again, your incriminating statements/joints in the ashtray/smell of burning marijuana).  If they find other bad evidence, or if they just feel like it, they can and probably will arrest you.  

Whether they arrest you or not, your constitutional right to be free from unreasonable searches and seizures was just violated.  How, you ask?  Well, the prosecution often relies on a case called Strasburg (incidentally arising in our neighboring county of Napa) to say that odor of marijuana is probable cause to search a car.  But that case didn’t really say that at all.  What it actually said was that probable cause was present to search that car in that situation, which presumes that there will be situations when the smell of cannabis alone does not give probable cause.  In Strasburg, the cop saw a suspect smoking a joint in the driver’s seat of a car.  Also, when he asked the kid about the marijuana smell, the kid handed the cop a bag of marijuana but the cop could clearly see a second bag of marijuana in the car.  

So the court in Strasburg relied on two factors to support a finding of probable cause there; first, the kid was obviously smoking in the driver’s seat.  And what do driver’s do? They drive.  That raised the reasonable inference that the kid was going to drive while impaired from smoking.  The second ground was that the cop saw 2 bags of cannabis, though the suspect only handed him one.   Well back in the good ol’ days of 2007, our Legislature had enacted these weight limits on how much weight of cannabis a qualified patient (i.e. someone with a valid recommendation for the therapeutic use of cannabis) could legally possess.  Just last year in 2010, though, our state Supreme Court said that the state and various counties couldn’t really impose those strict weight limits where someone was over the limit, though they still provided a safe harbor from prosecution where patients were under their county limits.

Anyhoo, what this means is that there is no law that says the smell of marijuana alone is sufficient to search your car after you’ve given the officer your valid recommendation, though they’re going to go ahead and do it.  However, in the Strasburg case, the officer reasonably thought the guy may drive after smoking.  Thus if the officer in your case has no cause to believe that you are smoking and driving, then he has less factors to rely on to get into your car.  Also, since the defendant in Strasburg gave the cop one bag, but had another bag of cannabis showing in plain sight in his car, then the cop had reason to believe that the guy was over the 8 ounce limit in effect at that time in Napa.  Thus, if the officer in your case has no cause to believe you have more cannabis that is reasonable, then he again has less factors to rely on to get into your car. 

In Massachusetts, their high court recently held that smell was insuffient to grant probable cause to search a medical cannabis patient’s car and, even in California, a case came out just last month saying smell of cannabis was not sufficient to give probable cause to do a warrantless search of a package.  That means there’s hope in the near future to change this ridiculously abused standard. 

Also, if marijuana becomes legalized to some extent, rather than what we have now (which is mere decriminalization of a still illegal substance for certain people), then probable cause based on odor will further be eroded.  Just think of how many cops lie about smelling cannabis and get into someone’s car, home, etc! It’s a racket, particularly in places like Northern California where cannabis use and transportation has proliferated since its decriminalization.  So a cop could claim to smell herb and, even if he was lying, he’d have a pretty good chance at finding some.   

What this all means for us is that, although cops shouldn’t be searching through our cars without the smell of burnt marijuana, or some factor to believe you’re driving is impaired, or some reason to believe that your cannabis possession is somehow unlawful, they’re still going to do it.  So be kind to the officer, but be smart and shut the heck up.  

You also have a Fifth Amendment right to keep quiet and you shouldn’t be afraid to use it.  Then, get a good attorney and work together with that attorney to build your defense where they can present all the arguments to a judge, whose job it is to decide ultimately what was reasonable.  But, if your attorney says, “smell is enough, so forget that defense,” they’re technically wrong.  And when that technical mistake costs you (what I believe to be) your greatest and most precious right, your Fourth Amendment right, its time to get a new lawyer.