April 2002

I recently had discussions with officers in regard to an area of the law that lead to much divided interpretation. The discussion was based on the current law that deals with the search of an automobile and its passengers upon the detection of an odor of marijuana coming from the interior of the vehicle.

The most common scenario officers encounter usually deals with the following: an officer makes a traffic stop and while approaching the vehicle and speaking to the driver, the officer smells what he believes (based upon his experience as a law enforcement officer) is marijuana coming from the interior of the vehicle.

I recently had one of these cases challenged by a defense lawyer based upon a similar scenario where the driver was found to be in possession of marijuana. The basic facts of this case were as follows: I was on routine patrol in a residential area and was behind (only car on road) a vehicle with the driver's window rolled down. The vehicle had tinted windows and had one other occupant. As I followed the vehicle, I could smell a strong odor of marijuana for the 5 blocks that I followed the vehicle. Without observing the driver committing any traffic infraction, I made a traffic stopped and approached the driver's side of the vehicle and noticed that the interior of the vehicle emitting a strong odor of marijuana. I then asked the driver if I could search the vehicle as well as his person to which he replied, "No." I then conducted the search anyway and found a bag of marijuana on his person and a marijuana pipe underneath the driver's seat.

The defense based its motion to suppress on the fact that: 1) the driver committed no traffic infraction, thus making the stop illegal; 2) that even if I did had reasonable suspicion to stop the vehicle, I had no probable cause to search the vehicle or its occupants.

One key point that was heavily argued by the defense was that the marijuana odor could have been coming from some other source (while following the vehicle) rather than the interior of the vehicle. However, as contained in my report, I mentioned that the wind direction was coming from the area of the suspect vehicle toward my vehicle, there were no other vehicles on the road, and that there were no pedestrians walking in the area that could have accounted for the marijuana odor and the odor never abated during the entire 5 blocks that I followed the suspect. Based upon the totality of circumstances, the judge ruled that I did have reasonable suspicion to stop the vehicle and had probable cause to search both the vehicle and its occupants.

The judge based his ruling on the well-settled case law that holds that officers do have probable cause to search both the vehicle and its occupants when an odor of marijuana is emitting from the interior of the vehicle.

Keep in mind that the officer does not need consent to conduct the search, but I recommend that the officer ask nonetheless. The reason for this is that if you get consent, then you avoid any challenge to a probable cause search. Even in my case the defense asked me, "If you felt that you had probable cause to search the vehicle, why did you ask for consent?" The defense was trying to argue that I did not have probable cause and that's why I asked for consent. However, as I pointed out to the court, my reason for asking for consent was to make my case as strong as possible and even though I had probable cause to search, I asked for consent nonetheless. Had the suspect given me consent, the state could have argued that the search was legal on two grounds: consent and probable cause.

The bottom line is that when an officer stops a vehicle and detects an odor of marijuana emitting from the interior, the officer needs no consent to search the vehicle and/or its occupants. However, as recommended, ask for consent. But if no consent if given, still conduct the search based upon probable cause and make the arrest if evidence is discovered.

One of the recent cases that addresses this issue is found in State v. Chambliss, 752 So.2d 114. If you want a copy of this case or any of the other cases that discuss this issue, please feel free to contact me.