May an officer search a motor vehicle based on the officer’s detection of the odor of marijuana coming from the vehicle? May the officer search the occupants of the vehicle? Several recent cases address these questions.
The odor of marijuana provides probable cause to search the vehicle. We have known this for some time. State v. Greenwood, 301 N.C. 705 (1981); State v. Smith, 192 N.C. App. 690 (2008) (“When an officer detects the odor of marijuana emanating from a vehicle, probable cause exists for a warrantless search of the vehicle for marijuana.”). The principle was recently reaffirmed in State v. Armstrong, 236 N.C. App. 130 (2014) (“[O]fficers had probable cause to search [a vehicle] based upon the odor of marijuana emanating from the vehicle.”).
What about the trunk? The North Carolina cases closest to the mark suggest that a search based on the odor of marijuana may extend to the trunk. State v. Cash, 89 N.C. App. 563 (1988) (ruling briefly that a search based on the “odor of marijuana” properly extended to the search of “plastic garbage bags found in the trunk of the car” because marijuana could be located in the trunk). Cf. State v. Mitchell, 224 N.C. App. 171 (2012) (holding that the fact that a passenger in a vehicle had marijuana on her person provided probable cause to search the trunk, but expressing this ruling in a way that arguably supports the idea that the odor of marijuana alone would also support a search of the trunk: “We have held that the mere odor of marijuana or presence of clearly identified paraphernalia constitutes probable cause to search a vehicle. . . . Clearly if the odor of marijuana alone is sufficient to constitute probable cause, seeing marijuana constitutes probable cause as well. Therefore, [the officer] could legally search wherever marijuana might reasonably be found, including the trunk and the luggage therein.”).
For what it may be worth, the federal courts are split on this issue. United States v. Champion, 609 Fed. Appx. 122 (4th Cir. 2015) (unpublished) (noting the split and collecting cases, but finding it unnecessary to take a position on the issue given additional evidence beyond the odor of marijuana that contributed to probable cause for searching the trunk in that case). The Tenth Circuit has taken the view that the odor of burnt marijuana, at least, does not support a search of the trunk by itself. United States v. Nielsen, 9 F.3d 1487 (10th Cir. 1993) (holding that where an officer “said he smelled burnt marijuana,” there was probable cause to support the search of the passenger compartment, but if nothing is found during that search, there is no probable cause to search the trunk). Cf. United States v. Carter, 300 F.3d 415 (4th Cir. 2002) (“In the instant case, [an officer] clearly had probable cause to search the passenger compartment of [a] vehicle without a warrant, based on the burning marijuana he smelled as he approached the car.”). Other courts have indicated that the odor of marijuana does provide probable cause to support a trunk search. See, e.g., United States v. Cherry, 436 F.3d 769 (7th Cir. 2006) (“[T]he government has inexplicably abandoned reliance on [an officer’s] testimony that he smelled marijuana—which seems a simple and compelling foundation for searching [a suspect] and ultimately the car including the trunk.”).
If the odor can be localized to an occupant, that occupant, and that occupant only, may be searched. The smell of marijuana coming from a person provides probable cause to search that person, and at least in many instances, the fact that “narcotics can be easily and quickly hidden or destroyed” will provide exigent circumstances sufficient to excuse the warrant requirement. State v. Yates, 162 N.C. App. 118 (2004). For a longer discussion of searches of individuals based on the odor of marijuana, see this previous blog post. Although I couldn’t quickly locate a case on point, I imagine that when the driver is the sole occupant of a vehicle, any odor of marijuana coming from the vehicle will support a search of the driver.
However, when a vehicle has multiple occupants, and the smell is coming from one occupant of a vehicle but not another, the second occupant may not be searched under State v. Malunda, 230 N.C. App. 355 (2013) (officers approached the passenger side of a vehicle parked at a gas station; the officers knew the passenger-defendant from prior drug activity; he was very nervous and an open container of alcohol was in the vehicle; the officers had him exit the vehicle and sit on the curb; officers then approached the driver’s side of the vehicle; they noticed an odor of marijuana that they had not noticed on the passenger side; they searched the vehicle and found marijuana in the driver’s side door; this led to a search of the defendant, during which officers located cocaine; the court of appeals ruled that while the odor of marijuana provided probable cause to search the vehicle, neither it nor the marijuana in the door provided individualized probable cause to search the defendant).
If the odor can’t be localized to an occupant, no occupant may be searched. So holds the significant recent case of State v. Pigford, __ N.C. App. __, __ S.E.2d __, 2016 WL 4087356 (N.C. Ct. App. Aug 2, 2016) (a vehicle containing two occupants was stopped at a checkpoint when officers noted the odor of marijuana coming through the driver’s window; the officers could not tell where within the vehicle the odor originated; an officer immediately ordered the defendant, who was the driver, out of the vehicle and searched him, finding cocaine residue; the officer then arrested the defendant and searched the vehicle, finding more drugs and a stolen gun; the court of appeals, citing United States v. Di Re, 332 U.S. 581 (1948), for the proposition that probable cause to search a vehicle does not necessarily justify a search of its occupants, ruled that the search of the defendant was faulty because there was no evidence “that the marijuana odor was attributable to defendant”). Cf. State v. Smith, 222 N.C. App. 253 (2012) (ruling that the fact that a drug dog alerted at the driver’s door of a vehicle did not provide probable cause to support the search of a passenger who had recently exited the vehicle).