Can Police Search Your Car If They Smell Marijuana?

For years, officers could use the fact that they believed they smelled cannabis as a reason to conduct a police search a vehicle for cannabis. But that might be changing, according to a new appeals court ruling from Pennsylvania.

Judges on the state Superior Court agreed with Lehigh County Judge Maria Dantos that smell alone is not sufficient reason for a police search of a car without a warrant, according to the Associated Press. In a twist however, they ruled that in this particular case, police still had the right to search the car because of other evidence.

Still, the ruling is an interesting one for cannabis consumers. It follows a national movement among some law enforcement agencies to end the marijuana smell test. But with thousands of people still arrested each year, it’s important for cannabis consumers to know what is happening in this area of the law.

The 100-Year Old “Automobile Exception”

Officers traditionally could use the “sniff test” to conduct a warrantless police search of a car because for about 100 years the U.S. Supreme Court has made automobiles an exception to unreasonable searches and seizures banned by the Fourth Amendment to the U.S. Constitution.

The exception, granted in the 1925 case Carroll vs. United States, allows officers to search a vehicle without a warrant if “a car is readily mobile and probable cause exists to believe it contains contraband.” Anything found during such a search can be used as evidence in court.

Police have used the odor of cannabis to serve as probable cause to search a car for decades. The ruling in 2018 by Dantos, who has since retired from the bench, found that is no longer the case.

Police found a handgun and a small amount of cannabis in a plastic baggie in the car. They arrested Timothy Barr, a passenger in the car. Dantos wrote her ruling that the smell of marijuana no longer provided police probable cause to search a vehicle because it is “no longer indicative of an illegal or criminal act,” according to the AP.

She also noted that Barr had a medical marijuana card. Pennsylvania is one of 33 states that currently allows medical marijuana use. Once Barr presented his card, it was “illogical, impractical and unreasonable” for officers to conclude a crime had been committed, Dantos wrote in her ruling.

Some Police Already Are Stopping “Sniff and Search”

After Dantos released her opinion in 2018, one now backed up by an appeals court, police officers already were stopping sniff and searches in some parts of the country.

“It’s becoming more difficult to say, ‘I smell marijuana, I can search the car.’ It’s not always an automatic thing,” Kyle Clark, who oversees drug impairment recognition training programs at the International Association of Chiefs of Police, told the Associated Press.

In both Florida and Texas, prosecutors have said they will top pursuing cases where the smell test is used. In addition to the fact that it no longer constitutes a crime in many cases, officers also have difficulty telling cannabis from hemp, which contains no THC. That confusion led to a man spending a month in jail in Texas in 2019.

But as long as marijuana remains illegal at the federal level, it’s on every cannabis consumer to know the laws in their state, cities and counties.

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