Many police officers use the smell of cannabis as probable cause for warrantless searches. Much like how “plain view” justifies the seizure of evidence without a warrant, countless numbers of Americans have been charged with possession after searches were executed following police officers claiming to smell weed.
However, a new investigation by The New York Times found that in more than 25 cases since January 2015, judges or prosecutors ruled that key aspects of the testimony of New York City police officers were probably untrue.
In Mapp. v. Ohio the court ruled that state judges must throw out evidence from illegal searches and seizures. Before that ruling, officers could simply stop someone they thought might be in possession of marijuana. They could then search their pockets and clothing. After describing such an encounter truthfully in court, the evidence wouldn’t have been thrown out, even though the search had been illegal. Mapp v. Ohio decision changed that, and greatly expanded the protection of the Fourth Amendment.
So-called “stop and frisk” searches are often defended by officers as having been the result of smelling weed. “Certain car stops, certain cops will say there is [the] odor of marijuana,” Officer Pedro Serrano of the New York City Police Department told The New York Times. “And when I get to the scene, I immediately don’t smell anything. I can’t tell you what you smelled, but it’s obvious to me there is no smell of marijuana.”
If the police say there was a weed smell coming from your vehicle or your front door, there’s no doubt you’re in a difficult spot. Courts have ruled, time after time, that the odor of cannabis gives officers probable cause to search. Unfortunately, there’s also no doubt that many cops are more than willing to lie about smelling weed.
Your best course of action in such a situation is usually to say, “Officer, I have nothing to hide, but I don’t consent to any searches,” according to Flex Your Rights. If they search you anyway, as is likely if they claim to smell weed, you’ll need an attorney if they find anything. But you’ll be in a much better legal position for not having consented to the search. It’s an easy rule of thumb: never consent to a search.
Even with legalization, police officers can still use weed smell as a reason to search you.
Now that recreational cannabis is legal for adults in more and more locales, you’d think the old excuse of a weed smell would stop working as an excuse for cops to search.
But in places in California, legal weed may actually give the cops more opportunity to search people, according to attorney Ryan A. Casey of the West Los Angeles law firm Panish Shea & Boyle LLP, reports LA Weekly. Casey says weed smell could be still used as probable cause if public consumption remains illegal.