If a police officer claims to smell marijuana, does that give him probable cause to search your car/house?
This doesn't seem quite right to me, but I'm no expert in the finer points of law.
9 Answers
Short answer: Yes, and no, respectively. Two things right off the top: First, this information is specific to the United States and is based on my experience as a police officer in the State of Missouri. Second, I'm a cop turned preacher and not an expert in constitutional law, so this is FWIW and FYI and YMMV and any other expectation-limiting acronym you want to toss into the mix. This issue involves reams of case law, but I'm going to try to distill the discussion down into something digestible in this format. Please bear with me and forgive any unintentional (and assuredly inevitable) glosses along the way.
Let's start with the house. If I walk up to your house and smell the distinct odor of marijuana coming from within, can I then search your house without first obtaining a search warrant? Not likely. The threshold for searching the interior of your home is extremely high, as it should be - courts have affirmed over the years that there is a "high expectation of privacy" in one's residence. In order for me to investigate the odor, I'm going to have to get into the house by some other means. No judge is going to sign a warrant based on a whiff of reefer, so unless exigent circumstances exist in conjunction with the odor for some odd reason, there is really only one other way I'm getting in: Consent. Permission obviously takes away any unreasonableness regarding entry.
In my scenario, I might knock and simply ask if I can come inside. If you let me in, I can visually scan the room I enter, but I cannot manipulate anything in the room - that constitutes a search. Contrary to seemingly widespread belief, permission to enter a dwelling does not automatically constitute permission to conduct a search.
A quick caveat to this idea. If there is a question about how the house is occupied (for instance, if you say you're home alone but I hear voices or footsteps, or any number of other articulable factors), officers are permitted to do an 'officer safety sweep' (quickly going through the structure to ensure there are no threats to our safety) - but even during this sweep, no active search can be made. I can only eliminate the possibility of ambush, which means that I can enter spaces large enough to conceal a human being (walk-in closets, shower enclosures, deep cabinets), but nothing smaller (dresser drawers, file cabinets). Also, I cannot manipulate anything in a room unnecessary to my intent of clearing the structure of possible hostiles during this sweep, or it turns into a search.
If I want to search, I have to specifically ask for consent for this. Some people will insist that the word "search" is magic and must be uttered in my request for it to be valid, but I'm fairly certain this isn't the case. Me asking, "Would you mind if I took a look around" has functionally held as much constitutional weight as, "Do you hereby consent to a search of your residence?" If you consent to a search, I now have legal access to any part of the residence, including those smaller areas, unless you specifically exclude access to a particular area (Pro Tip: Doing so is a huge flaming red flag billowing atop a pole which is itself on fire). If you decline a search, I'm pretty much at the end of my rope on the investigation, unless I see something in plain view. This is the legal basis for your question about detecting an odor, so we need to discuss it first.
Plain view is a long-supported exception to the Fourth Amendment warrant requirement. In the above scenario, if I am granted permission to walk into the living room and see marijuana pipes on top of the coffee table, I can immediately seize them as evidence without obtaining a warrant. Plain view requires three things to withstand judicial scrutiny:
Only when all three of those requirements are met can I effect a seizure. Now, let's tie that into the "odor of marijuana" issue. We've established that I cannot enter your house based on odor alone. But let's assume that you allowed me into the residence, and I there smelled such an odor. Can I search then? Still no. I need probable cause to search, and odor in a residence does not give it to me. Maybe the tenant before you smoked marijuana so often the smell permeated the drapes. Maybe a guest smoked a roach while you were in the backyard and took his stash with him. Maybe any number of things - but odor can only give me a hunch, which does not give me license to search. See also my answer on Does matching the description of a suspect amount to probable cause for detainment and/or arrest?.
Now let's move to the car. If I conduct a traffic stop on a vehicle you are driving, and I smell the odor of marijuana in or about the cabin, can I then search your vehicle? In most jurisdictions in the United States, yes. Operators of motor vehicles enjoy a much lower expectation of privacy than those in their homes, due to their being both inherently mobile and perpetually open to outside view (if your tint is so dark as to exclude all outside view, I can almost guarantee it is illegal). Let's walk through why "plain smell" allows a warrantless search of a vehicle.
To conduct a traffic stop on your vehicle, I must first have probable cause to do so. This legitimizes my detaining you, but does not automatically give me access to the interior of your vehicle. Seeing contraband in your vehicle, however, would - due to the Plain View exception to the Fourth Amendment warrant requirement. As long as the second (visible without manipulation) and third (immediate recognition) requirements for Plain View exist, the Supreme Court has ruled that a vehicle's inherent mobility creates "an exigency sufficient to excuse failure to obtain a search warrant once probable cause to conduct the search is clear" (see Pennsylvania v. Labron, which can be found at http://laws.findlaw.com/us/518/9...). This exigency completes my requirements for seizure and search of the cabin area (which gets into other case law that I'll defer discussion on for the time being; if you're interested, the applicable United States Supreme Court case is Chimel v. California). The mobility separates this from the house discussion - your car could be two states over by the time I got a warrant. Your house isn't going anywhere.
How does that relate to smell? Well, the USSC has largely avoided adjudicating the issue of Plain Smell. Some believe that the USSC endorsed the doctrine in their decision in United States v. Johns, but see Michael A. Sprow's opinion in footnote #38 of "Wake Up and Smell the Contraband: Why Courts that do not Find Probable Cause Based on Odor Alone Are Wrong" (accessible via http://scholarship.law.wm.edu/wm.... Circuit courts, however, have overwhelmingly supported the doctrine, essentially asserting that, given requisite training and experience necessary to detect distinctive odors associated with contraband, there is no reason an officer's sense of sight should hold more evidentiary weight than his or her sense of smell. For rulings in this regard, reference footnote #41 in Sprow's article. From my research, the only jurisdiction I can find which has failed to uphold this doctrine is Massachusetts - seemingly because possession of less than an ounce of marijuana is not a criminal offense (Michigan did not recognize the doctrine at one time, but has since reversed).
Thus, most courts of jurisdiction in the United States recognize that the plain smell of contraband creates probable cause for a search, and that the inherent mobility of a vehicle creates an exigent circumstance which removes the need for consent or a search warrant. So, in those places, if I approach your vehicle during a vehicle stop and smell the odor of marijuana (or the odor of another type of contraband, if I can articulate my experience in recognizing it) in or about the cabin, I can order you out of the vehicle and search the cabin without consent or a warrant.
In closing, a couple of thoughts. First, there is no freshness requirement in the Plain Smell doctrine. It doesn't have to be a scene cut from a Cheech and Chong movie, with smoke boiling out of the driver's window, for the doctrine to apply - if it can be smelled, to any degree, from the driver's window, you're probably going to get your cabin tossed. Thus, if you let your friends smoke weed in your car, expect a vehicle search upon every police contact. Second, the phrasing of the question suggests a suspicion that an officer would feign Plain Smell to get a free search. Rest assured, no officer with two brain cells to rub together is going to put their career in a guillotine over misdemeanor weed. Conscious initiation of an unlawful search will result in either a Letter of Reprimand or a resignation letter to sign; if an officer commits perjury on the stand, their career is over and they're looking at possible jail time. If it's a choice between falsifying information or someone skating on a dime bag, they can toke away to their heart's content.
Hopefully that addressed the scope of your question; the constitutional law folk among our ranks might have corrections or other considerations to kick into the conversation.
Let's start with the house. If I walk up to your house and smell the distinct odor of marijuana coming from within, can I then search your house without first obtaining a search warrant? Not likely. The threshold for searching the interior of your home is extremely high, as it should be - courts have affirmed over the years that there is a "high expectation of privacy" in one's residence. In order for me to investigate the odor, I'm going to have to get into the house by some other means. No judge is going to sign a warrant based on a whiff of reefer, so unless exigent circumstances exist in conjunction with the odor for some odd reason, there is really only one other way I'm getting in: Consent. Permission obviously takes away any unreasonableness regarding entry.
In my scenario, I might knock and simply ask if I can come inside. If you let me in, I can visually scan the room I enter, but I cannot manipulate anything in the room - that constitutes a search. Contrary to seemingly widespread belief, permission to enter a dwelling does not automatically constitute permission to conduct a search.
A quick caveat to this idea. If there is a question about how the house is occupied (for instance, if you say you're home alone but I hear voices or footsteps, or any number of other articulable factors), officers are permitted to do an 'officer safety sweep' (quickly going through the structure to ensure there are no threats to our safety) - but even during this sweep, no active search can be made. I can only eliminate the possibility of ambush, which means that I can enter spaces large enough to conceal a human being (walk-in closets, shower enclosures, deep cabinets), but nothing smaller (dresser drawers, file cabinets). Also, I cannot manipulate anything in a room unnecessary to my intent of clearing the structure of possible hostiles during this sweep, or it turns into a search.
If I want to search, I have to specifically ask for consent for this. Some people will insist that the word "search" is magic and must be uttered in my request for it to be valid, but I'm fairly certain this isn't the case. Me asking, "Would you mind if I took a look around" has functionally held as much constitutional weight as, "Do you hereby consent to a search of your residence?" If you consent to a search, I now have legal access to any part of the residence, including those smaller areas, unless you specifically exclude access to a particular area (Pro Tip: Doing so is a huge flaming red flag billowing atop a pole which is itself on fire). If you decline a search, I'm pretty much at the end of my rope on the investigation, unless I see something in plain view. This is the legal basis for your question about detecting an odor, so we need to discuss it first.
Plain view is a long-supported exception to the Fourth Amendment warrant requirement. In the above scenario, if I am granted permission to walk into the living room and see marijuana pipes on top of the coffee table, I can immediately seize them as evidence without obtaining a warrant. Plain view requires three things to withstand judicial scrutiny:
- The officer has lawful access to a constitutionally protected area. If you consented to my entry, I have a search warrant, or I had exigent circumstances compelling me to enter without either (assault in progress, destruction of evidence, etc.), I have such access. This is an important step - even if I saw a trafficking-level grow operation through an open window, I couldn't barge in and secure it without consent or a warrant (I'm getting the latter, by the way).
- The item in question is in 'plain view,' and requires no manipulation to observe. Going to the living room scenario, if I see the outline of what looks to be drug paraphernalia under fabric (or any number of other situations), I cannot move the fabric to make sure and then seize it based on plain view. Legally, even though I saw evidence of it, it required a search to directly observe.
- The officer immediately recognizes the item in question as contraband. I'm not required to have certainty - I can't carry a forensics lab around with me. At the same time, though, I can't be uncertain - I can't seize something because I think there's an off chance it might be black tar heroin. If I seize something, I have to do it in good faith.
Only when all three of those requirements are met can I effect a seizure. Now, let's tie that into the "odor of marijuana" issue. We've established that I cannot enter your house based on odor alone. But let's assume that you allowed me into the residence, and I there smelled such an odor. Can I search then? Still no. I need probable cause to search, and odor in a residence does not give it to me. Maybe the tenant before you smoked marijuana so often the smell permeated the drapes. Maybe a guest smoked a roach while you were in the backyard and took his stash with him. Maybe any number of things - but odor can only give me a hunch, which does not give me license to search. See also my answer on Does matching the description of a suspect amount to probable cause for detainment and/or arrest?.
Now let's move to the car. If I conduct a traffic stop on a vehicle you are driving, and I smell the odor of marijuana in or about the cabin, can I then search your vehicle? In most jurisdictions in the United States, yes. Operators of motor vehicles enjoy a much lower expectation of privacy than those in their homes, due to their being both inherently mobile and perpetually open to outside view (if your tint is so dark as to exclude all outside view, I can almost guarantee it is illegal). Let's walk through why "plain smell" allows a warrantless search of a vehicle.
To conduct a traffic stop on your vehicle, I must first have probable cause to do so. This legitimizes my detaining you, but does not automatically give me access to the interior of your vehicle. Seeing contraband in your vehicle, however, would - due to the Plain View exception to the Fourth Amendment warrant requirement. As long as the second (visible without manipulation) and third (immediate recognition) requirements for Plain View exist, the Supreme Court has ruled that a vehicle's inherent mobility creates "an exigency sufficient to excuse failure to obtain a search warrant once probable cause to conduct the search is clear" (see Pennsylvania v. Labron, which can be found at http://laws.findlaw.com/us/518/9...). This exigency completes my requirements for seizure and search of the cabin area (which gets into other case law that I'll defer discussion on for the time being; if you're interested, the applicable United States Supreme Court case is Chimel v. California). The mobility separates this from the house discussion - your car could be two states over by the time I got a warrant. Your house isn't going anywhere.
How does that relate to smell? Well, the USSC has largely avoided adjudicating the issue of Plain Smell. Some believe that the USSC endorsed the doctrine in their decision in United States v. Johns, but see Michael A. Sprow's opinion in footnote #38 of "Wake Up and Smell the Contraband: Why Courts that do not Find Probable Cause Based on Odor Alone Are Wrong" (accessible via http://scholarship.law.wm.edu/wm.... Circuit courts, however, have overwhelmingly supported the doctrine, essentially asserting that, given requisite training and experience necessary to detect distinctive odors associated with contraband, there is no reason an officer's sense of sight should hold more evidentiary weight than his or her sense of smell. For rulings in this regard, reference footnote #41 in Sprow's article. From my research, the only jurisdiction I can find which has failed to uphold this doctrine is Massachusetts - seemingly because possession of less than an ounce of marijuana is not a criminal offense (Michigan did not recognize the doctrine at one time, but has since reversed).
Thus, most courts of jurisdiction in the United States recognize that the plain smell of contraband creates probable cause for a search, and that the inherent mobility of a vehicle creates an exigent circumstance which removes the need for consent or a search warrant. So, in those places, if I approach your vehicle during a vehicle stop and smell the odor of marijuana (or the odor of another type of contraband, if I can articulate my experience in recognizing it) in or about the cabin, I can order you out of the vehicle and search the cabin without consent or a warrant.
In closing, a couple of thoughts. First, there is no freshness requirement in the Plain Smell doctrine. It doesn't have to be a scene cut from a Cheech and Chong movie, with smoke boiling out of the driver's window, for the doctrine to apply - if it can be smelled, to any degree, from the driver's window, you're probably going to get your cabin tossed. Thus, if you let your friends smoke weed in your car, expect a vehicle search upon every police contact. Second, the phrasing of the question suggests a suspicion that an officer would feign Plain Smell to get a free search. Rest assured, no officer with two brain cells to rub together is going to put their career in a guillotine over misdemeanor weed. Conscious initiation of an unlawful search will result in either a Letter of Reprimand or a resignation letter to sign; if an officer commits perjury on the stand, their career is over and they're looking at possible jail time. If it's a choice between falsifying information or someone skating on a dime bag, they can toke away to their heart's content.
Hopefully that addressed the scope of your question; the constitutional law folk among our ranks might have corrections or other considerations to kick into the conversation.
I have very little to add to Justin Freeman's excellent and comprehensive answer. I would point out that the "plain view" doctrine isn't really an exception to the search warrant requirement since it is justified on the basis that, if something is in plain view, you didn't have to search for it. So it's not a search and no warrant is required. If a police officer has a legal right to be where she is and sees something in plain view, then she hasn't searched and isn't availing herself of a search, she is simply seizing contraband in plain view.
Don't be stupid. Don't flush, don't make "furtive movements", don't leave things in plain view, and DON'T let police enter your home. If they are at the door, answer them through the door and if they ask you to open the door, ask if they have a warrant. If they don't, leave the door closed and thank them but no thank you. If you do for some reason open the door, keep the chain locked and keep your foot wedged because they may try and force their way past you and later claim that you invited them in.
Events of the last few months all over the country and caught on video have made something clear to the masses that all of us in the judicial system have known for many years: police are no different from any other human beings and the bad ones have no hesitation about lying when they want to. This is not an indictment against cops, it is an affirmation that cops are just like everyone else.
Don't be stupid. Don't flush, don't make "furtive movements", don't leave things in plain view, and DON'T let police enter your home. If they are at the door, answer them through the door and if they ask you to open the door, ask if they have a warrant. If they don't, leave the door closed and thank them but no thank you. If you do for some reason open the door, keep the chain locked and keep your foot wedged because they may try and force their way past you and later claim that you invited them in.
Events of the last few months all over the country and caught on video have made something clear to the masses that all of us in the judicial system have known for many years: police are no different from any other human beings and the bad ones have no hesitation about lying when they want to. This is not an indictment against cops, it is an affirmation that cops are just like everyone else.
Always remember that the best way to a good outcome is de-escalation and remaining calm
If You’re Stopped In Your Car
- Calmly pull over to the side of the road
- Have your license, registration, and proof of insurance ready to show the officer. Have your medical card on hand in case you need to prove legal possession
- You have the option of only rolling down your window enough to give your papers, but keep in mind some officers may find this suspicious or disrespectful. You and your passengers (if any) can assert your right to remain silent and refuse any searches
- If an officer asks you to step out of the car, you must comply. But, be sure to remove the keys from ignition and lock the doors behind you
- Officers may only search you if they have probable cause of criminal activity, which includes seeing or smelling cannabis [Source]
If You’re Stopped On the Street
- Ask if you’re free to go. If you are, walk away, don’t run
- If an officer attempts to search your belongings, say “I do not consent to any searches”
- You’re only required to show ID if officers have “reasonable” suspicion of wrongdoing
- If an officer tries to frisk you, he/she must have a reasonable suspicion for doing so
- Do not physically resist a search. Touching an officer can result in “assault on an officer,” which is a felony
- If you’re being detained, assert your right to silence and ask to speak with a lawyer [Source]
You can print this out and put it in your car for safe keeping
Here we arrive at a key distinction between US law and UK law. In the US, there are a set of technical threshholds established - as in Justin's excellent answer - related to probability. In the UK, everyone - officer, citizen, juror, public prosecutor - is bound by a concept of 'reasonableness'. Ultimately, the question in UK law is, 'Would a jury find this reasonable?' Reasonableness governs almost every aspect of English law, from the laws of tort to the use of force by an officer to the charge of assault. So, for ascertaining what an assault consists of, the question is always asked, 'Was it reasonable for the aggrieved party to think that an assault was taking place?' is asked. That reasonableness would change from person to person; to gently push an 86 year old lady is unreasonable, but in the context of what happens when groups of lads go to bars, an assault charge would be unlikely!
In the UK, in the case of possessions, like a car, most jurors would think it reasonable that an officer would search someone who stank of dope, and search their possessions too - a car is a possession, just like a bag.
Would a jury think it reasonable to enter someone's house because of a smell of dope? Unlikely, I think. It'd be a massive risk for an officer. For a start, it'd be hard to say who'd been smoking it. Second, it wouldn't pass a test of a reasonable use of police resources. Finally, to enter someone's house without a warrant is usually only possible to prevent the commission of a notifiable crime, or to apprehend someone suspected of same. The existence of a smell of dope from a house does not imply that any crime is being committed at that time, or even that an offender is present. However, if an officer smellt growing dope (it smells very different!), and noticed that the electricity meter had been by-passed... altogether different.
Policing in general is more consensual, and less assertive, in the UK than the US, despite all the constitutional protections. Perhaps because, as Justin points out, they lead to procedural niceties to get over those hurdles that can be intrusive in themselves, and because the likelihood of anyone in the UK being armed is very, very low.
In the UK, in the case of possessions, like a car, most jurors would think it reasonable that an officer would search someone who stank of dope, and search their possessions too - a car is a possession, just like a bag.
Would a jury think it reasonable to enter someone's house because of a smell of dope? Unlikely, I think. It'd be a massive risk for an officer. For a start, it'd be hard to say who'd been smoking it. Second, it wouldn't pass a test of a reasonable use of police resources. Finally, to enter someone's house without a warrant is usually only possible to prevent the commission of a notifiable crime, or to apprehend someone suspected of same. The existence of a smell of dope from a house does not imply that any crime is being committed at that time, or even that an offender is present. However, if an officer smellt growing dope (it smells very different!), and noticed that the electricity meter had been by-passed... altogether different.
Policing in general is more consensual, and less assertive, in the UK than the US, despite all the constitutional protections. Perhaps because, as Justin points out, they lead to procedural niceties to get over those hurdles that can be intrusive in themselves, and because the likelihood of anyone in the UK being armed is very, very low.