North Carolina Criminal Law NC Criminal Law

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 Sept. 19, 2006) (unpublished) (officer who smelled odor of marijuana emanating from suspect had probable cause and exigent circumstances supporting a warrantless search).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 (4^th 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 App. 2011) (unpublished) (noting that “the Kansas Supreme Court has found probable cause to search a vehicle based solely upon the odor of marijuana” but concluding that “[u]nder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. 4^th 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.