For years, it was accepted that law enforcement officers who detected a marijuana odor during a traffic stop had enough probable cause to allow a warrantless search of a motor vehicle. However, as most states have passed laws decriminalizing or legalizing marijuana, the “Plan View” doctrine has come under scrutiny. While cannabis has been reclassified as a Schedule III drug, it's still a controlled substance in the eyes of the federal government.
But with most states allowing medical cannabis and about half permitting recreational marijuana use, an officer detecting either the odor of marijuana or burned marijuana is no longer the source of solid probable cause that it used to be. That doesn't mean that it's vanished completely, especially in jurisdictions where it is still illegal. it also does not rule out the scent as part of the totality of the circumstances that could establish probable cause, such as suspicion of DUI. Nevertheless, when it comes to the distinct odor of weed, the bar against unreasonable searches and seizures of your vehicle has been raised.
There is a significant difference between the reasonable suspicion law enforcement requires to pull you over and the probable cause needed to skip getting a search warrant. In the past, marijuana was illegal contraband across the nation, and the presence of its scent was considered part of the "Plain View" doctrine of a potential crime in progress. This was supported by verdicts in U.S. Supreme Court cases such as United States v. Johns (1985).
There are several important aspects to keep in mind, though. Police may not be able to establish probable cause from the scent alone, but other indicators may combine with it to provide enough justification. As mentioned earlier, the state laws will also be a crucial factor. A marijuana odor may not raise the eyebrow of a trooper in cannabis-friendly states like Massachusetts, California, and Colorado, but it's likely to be a much different story if it's detected in jurisdictions where weed is still illegal, such as Kansas and Wyoming.
There are a few common-sense approaches to keep in mind if you're concerned about the odor of marijuana either on you or in your car after being pulled over. If you're going to carry cannabis in your car or on yourself while driving, store it in an odor-proof container and keep it out of plain view. A pre-roll kept in your glove box is not immediately visible, but having it in an open ashtray or on your dashboard is. The same is true for paraphernalia like rolling papers or bongs, which might provide probable cause that illegal use of cannabis took place in the vehicle.
When interacting with an officer, your goal is to be as boring as possible. Being overly friendly or standoffish can raise suspicion. You're going to need to give them your license and registration, so it's best not to make an issue over opening your window to do so. Do not admit to any wrongdoing, and absolutely do not consent to your vehicle being searched. It doesn't matter whether you believe there's nothing in the car that could get you in trouble. If you're wrong, giving permission can make it much harder to file a successful motion to suppress later, because a search based on valid, voluntary consent is generally considered reasonable under the Fourth Amendment. "I do not give consent to a search of my vehicle" should be the only response you give to requests to do so.
If you or a loved one is in a bind as a result of a criminal allegation, immediately contact a Seattle Criminal Attorney. A Seattle Criminal Defense Attorney is not going to judge you and understands that everyone makes mistakes. Hiring a Seattle Criminal Lawyer to help can – at a minimum – reduce penalties and can help direct people on how to best deal with their DUI charge, and some times even get them dismissed. So, it should go without saying that someone cited for a DUI should hire a qualified Seattle DUI Lawyer as soon as possible. DUI charges can cause havoc on a person’s personal and professional life. Anyone charged with a DUI in Washington State should immediately seek the assistance of a seasoned Seattle DUI Lawyer. SQ Attorneys can be reached at (425) 359-3791 and/or (206) 441-0900.