Searching a Person Based on the Smell of Marijuana

The question. Many cases hold that the smell of marijuana provides probable cause to search a vehicle. See, e.g., State v. Greenwood, 301 N.C. 705, 708 (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.”). I have been asked many times whether that principle extends to individuals. In other words, if an officer detects the odor of marijuana emanating from a person, may the officer search the person?

The answer. Generally, the answer under North Carolina law is yes. See State v. Yates, 162 N.C. App. 118 (2004) (smell of marijuana provided probable cause to search suspect, and potential destruction of evidence provided exigency supporting warrantless search); State v. Burch, 2006 WL 2671337 (N.C. Ct. App. Sept. 19, 2006) (unpublished) (officer who smelled odor of marijuana emanating from suspect had probable cause and exigent circumstances supporting a warrantless search). Cf. State v. Rivens, 198 N.C. App. 130 (2009) (officer “noticed a bulge in defendant’s shirt, the smell of marijuana on defendant, and the nervous twitch of defendant’s mouth,” and this “was sufficient to create a reasonable and articulable suspicion of criminal activity” and to support a frisk); In re S.W., 171 N.C. App. 335 (2005) (SRO working with school officials had “reasonable grounds” to search a juvenile when the officer smelled a strong odor of marijuana coming from the student).

Split of authority in other jurisdictions. As a matter of intellectual interest, it is worth noting that this issue has divided courts elsewhere. Plenty of cases reach results similar to those reached by our appellate courts. See, e.g., United States v. Humphries, 372 F.3d 653 (4th Cir. 2004) (“[I]f an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana.”); State v. Moore, 734 N.E.2d 804 (Ohio 2000) (probable cause and exigent circumstances existed to support a search of the defendant where an officer detected a strong odor of marijuana coming from the defendant and his vehicle). However, there are also cases in other jurisdictions that disagree. See State v. Smith, 2011 WL 4563077 (Kan. Ct. App. 2011) (unpublished) (noting that “the Kansas Supreme Court has found probable cause to search a vehicle based solely upon the odor of marijuana” but concluding that “[u]nder current Kansas law the odor of marijuana alone is not enough” to justify the search of a person); United States v. Smith, 694 F.Supp.2d 1242 (M.D. Ala. 2009) (stating that while “the smell of narcotics does constitute probable cause to search the vehicle” the prosecution presented no authority for the proposition “that the smell of marijuana constitutes probable cause to search the person”).

Variants on the question. There are interesting variants on this question. For example, does an odor of marijuana emanating from a group of people provide a justification for searching each of them? See A.T. v. State, 93 So.3d 1159 (Fla. Ct. App. 4th Dist. 2012) (discussing conflicting precedents on this issue). Does an odor of marijuana emanating from a person allow the search of a vehicle in which the person was a recent occupant? And, are there unusual circumstances under which an odor of marijuana emanating from a person doesn’t justify a search, such as when the person has just left a raucous party and exudes only a mild odor of marijuana that may be due to environmental marijuana smoke at the gathering? I’ll leave those for another post.

12 comments on “Searching a Person Based on the Smell of Marijuana

  1. What about searching a home when the officer is invited in for other reasons? For instance, if the officer is already in the home for the purpose of investigating a domestic dispute and he smells an odor of marijuana emanating from a bedroom (that has the door closed). Is the officer able to perform a warrantless search of the bedroom based on the smell?

  2. Let’s just cut the 4th amendment out of the Constitution completely. We have become pretty complacent with unbridled government power and we aren’t really using that amendment anyway. It sure would save some space. Hell, law school exams would be a lot easier. Just say “the government wins” as every single essay answer.

  3. The main issue with cops allegeing a smell is that cops lie, often, and will say that they smelled pot to overcome refusal to consent to a search and to overcome the warrant requirement. Is is quite common for cops who have a ” hunch ” or who want to conduct a search just to see if they can get an easy bust to allege the smell of pot, knowing that they will likely be believed over a civilian, regardless of innocence. Not many copsare honest enough to abandon a potential bust just because they lack legal authority to do so…after all, cops can legally lie and do so with abandon, except when under oath, and most cops think that lying to secure a conviction, especially when evidence is found that proves some level of guilt is perfectly OK. Cops think that the ends justify the means, and that allowing a possible pot smoker to escape the ” justice ” that awaits them for discovery is unacceptable to the point of subterfuge. This will continue until the voters remove the laws that allow cops to arrest for adult possession of personal use amounts of cannabis, as has been done in Washington state and Colorado already. The politicians are craven cowards unwilling to use common sense and scientific reality to strip away the ability of the cops to cage harmless users of a beneficial plant, so hopefully in the near future voter disgust with the prohibition schemes will make it impossible for cops to use smell, whether real or not, as an excuse to strip away our fundamental protections. It is high time we take away a cops ability to manufacture probable cause by claiming their noses detect a certain odor…because cops do not have the ability to tell the truth when they want a result, we must remove their choice in the matter.

    • I agree with your post however I think cops will just move on to a different smell and claim cocaine or heroin (though in my 33 years of practice, I’ve never heard of an officer claiming anything but marijuana). Warrant less searches based on a suppose odor is a powerful tool for cops and they won’t let that go easily.

      Testilying is a direct result of cops wanting a result.

  4. RichieRich, you are obviously a pot smoker and have lost most of your brain cells. If you really believe that law enforcement is that crooked then don’t call 911 when someone is breaking into your home!

    • Testilying is alive and well. You have to be pretty naive to believe cops don’t lie. That blanket support is why they get away with a lot of things.

    • I am drug free, including cannabis, and implying that to hold my opinions means being a ” pot smoker ‘ is nonsense. The only reason I would call 911 if someone broke into my home would be to have them haul a body is illegal to bury home invaders in the woods and I want to be a law abiding person.

      • “Testilying” may be common, but in the practices of myself and fellow peer officers we don’t make up the smell of pot. As a matter of fact, we tend to even disregard the smell of pot due to the fact that if you searched every single person who smelled like marijuana you’ll not get any real work done. Plus, the legalization of marijuana is pretty much a hop-skip-and a jump away.

        The only real cases when we go off of the fact that someone smells like marijuana is when we know for a fact something bigger is going down. That’s like pulling over someone with no tag light when you really know they have warrants. Or during a traffic stop checking to see if the registration is signed (Which is a law) and if not, using that to get the person out of the car so that you can see what is REALLY going on.

        In other words, the odor of marijuana is a door that leads to the good stuff. Not every cop abuses their sworn statements and tarnishes the badge with lies on the stand; but one bad apple ruins it for everyone, I guess.

        • FACT: There is no legal requirement that car registrations have to be sighed. My proof is I have never sighed the registration for any of the 9 cars that I have owned in the last 40 years.

  5. Many of the posters are dead on when it comes to the mere smell of marijuana can give an officer an excuse to search a car. Even more true these days with legal synthetic spices that smell like weed. That being said, if an officer wants to search a car all he has to say is he thought he saw what looked like a weapon on the floorboard or on the car seat. Best bet- keep all your illegal stuff in your trunk!

  6. […] 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 […]

  7. With the courts divided on the issue of plain smell, whether or not a warrantless search based on the smell of marijuana is legal depends on the case law in your state.