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Can the Smell of Marijuana Justify a Police Search?

Posted by Lynn Gorelick | Apr 03, 2020 | 0 Comments

A few decades ago, the police in California could bust you for having some pot. Over time, possession of a small amount of marijuana was treated less seriously, maybe resulting in a ticket. However, medical marijuana has been available in California for more than 20 years. Recreational use of marijuana has been okay since 2016. In this time of legal pot possession, police may still try and use the smell of marijuana to justify a police search. 

Smell of Marijuana and 4th Amendment Searches

The U.S. Supreme Court found an automobile exception to the protection against unreasonable search and seizure if the police found evidence of a crime, including the smell of marijuana. If the cops smell pot coming from inside a car, they could use that as a basis to conduct a search of the vehicle, even if the driver did not consent to a search. 

In the dozens of other states where marijuana is still illegal and possession is still a criminal offense, the police can still use the smell of marijuana to justify a search. However, with legal weed being so common now in California, some courts are telling cops that the smell of pot alone is not enough to justify a search. 

Alameda County Court and Smell of Marijuana in the Car

An appellate panel in Alameda County recently ruled that a police officer smelling marijuana coming from a vehicle in Berkeley did not have justification to conduct a warrantless search. An officer stopped a driver and conducted a search after smelling marijuana. The search revealed a loaded handgun. In ruling against the unlawful search, the handgun evidence was suppressed.

Marijuana and alcohol now receive similar treatment under the law,” the Appellate Division of Alameda County Superior Court ruled. 

The driver passed a field sobriety test and had not been driving erratically. The driver also admitted to possession of a small amount of marijuana, only a little more than a gram inside a container. Possession of the marijuana was legal under Prop. 64 and the driver's only other violation was driving without a front license place. Based on the information, the judge found the officer did not have reason to search the vehicle. 

If the police officer suspected the driver was under the influence of marijuana, the driver could have been charged with a marijuana DUI. Drivers can possess marijuana for medical or recreational use. However, it is still against the law to drive while impaired by marijuana, alcohol, or other impairing substances. 

Arrested After an Unlawful Search in the East Bay

The 14th Amendment to the U.S. Constitution says it's unlawful for law enforcement officials to conduct a search of you or your property without justifiable cause or a warrant. Unfortunately, the police do not always follow the rules when it comes to search and seizure. 

If you end up under arrest after the police conducted an unlawful search of your car, contact an experienced East Bay criminal defense attorney. Your lawyer will investigate the arrest, tell you of your options, and build a strong defense to fight a conviction. Call attorney Lynn Gorelick at 510-785-1444 or 925-847-3006. 

About the Author

Lynn Gorelick

Lynn Gorelick has been an attorney for over 38 years. She is the Attorney Lynn Gorelick is the Immediate Past President of the California DUI Lawyers Association and a Faculty and Sustaining member of the National College of DUI Defense. Lynn is a Specialist Member of the California DUI Lawyers Association and lectures frequently to other attorneys regarding DUI and DMV issues.


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