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Odor of marijuana and probable cause for vehicle search.

Discussion in 'Cop Talk' started by Reyn, Aug 18, 2011.


  1. Reyn

    Reyn
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    Has it changed where an officer has to distinguish between burnt marijuana and raw marijuana when going into the trunk of a vehicle?
     

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  2. glockurai

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    Not that I've heard of.
     

  3. RocPO

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    No. Possession of marijuana is a crime as well.
     
  4. ctaggart

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    What state are you in? Case law is going to dictate a lot of your search and seizure.
     
  5. merlynusn

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    If I smell marijuana that has been burned. It still gives me PC to believe evidence of a crime may be in the vehicle. Therefore, I can get into the trunk as well. I'm in NC.
     
  6. 4949shooter

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    It hasn't changed. Odor of burnt will get you the entire vehicle. Unless there is case law in your state that says otherwise.

    Here in NJ, we are obtaining consents or search warrants in order to search a vehicle based on the probable cause resulting from odor of marijuana. But that's our state, and a few others.

    Though I am not sure if all agencies are on board with this yet.
     
    #6 4949shooter, Aug 18, 2011
    Last edited: Aug 18, 2011
  7. ray9898

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    The whole shebang.
     
  8. phuzz01

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    The one case that I am aware of that contradicts the rest of the country is Massachusetts. They have made possession of small amounts of marijuana a civil infraction, not a crime. So, there is new MA Supreme Court case law stating that odor of burnt marijuana alone is no longer probable cause that a crime was committed. In fact, not only did they rule that it is not probable cause to search, they ruled that it was not sufficient to order the driver or passengers to exit the vehicle.
     
  9. Big House

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    They can't be charge with DWI/DUI?
     
  10. DaBigBR

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    I can kinda see what they were driving at saying that it's not PC that a crime was committed (doesn't mean I agree), but the last part's nutty...flies in the face of established law that does not require any reason to order the occupants to exit the vehicle.

    Not very successfully based merely upon the presence of an odor.
     
  11. Reyn

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  12. RetailNinja

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    Apparently judges in MA smoke weed...
     
  13. Big House

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    With the odor usually associated as marijuana, burnt or otherwise, this is not enough to establish cause to test at roadside? WTH is that state doing to protect its citizens? :dunno:
     
  14. MeefZah

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    Vehicle exception doesn't apply?

    If they refuse consent do you stand at the window for a few hours waiting on someone else to get the warrant? how do you justify the length of detention? I'm confused...
     
  15. DaBigBR

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    No Infidels!

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    Yes, it most likely does, but the issue here is the ability to search the car. After the person is (presumably) arrested for driving/operating while/under impaired/intoxicated/the influence (whatever they call it there), then I would think that you should still get the car under Belton/Gant, but that would be the next test case for them, I suppose.

    Indeed that is how it works in places that do not recognize Carroll. The length of detention is justified the same way it would be if you were holding a residence to get a search warrant.
     
  16. 4949shooter

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    DaBigBR nailed it. Unfortunately, here in the Peoples' Republik, the courts do not hold there to be exigency on a motor vehicle stop. In other words, they say we have the time to get a warrant. The only way around this is through a consent search.

    State of NJ vs. Juan Pena Flores set the stage for this.

    State of NJ vs. Charles Fuller anchored it.
     
  17. steveksux

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    And apparently "Its just weed, man" is established case law... :rofl:

    Randy
     
  18. MeefZah

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    That is insane.

    If I smell weed I am getting in the car, period, right now, no warrant needed.

    I had no idea that wasn't a nationwide thing.
     
  19. phuzz01

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    It flies in the face of established FEDERAL law. However, individual states can interpret their own constitutions to grant rights and protections beyond what is afforded by federal law. Many states have interpreted their constitutions to put additional restrictions on law enforcement during investigatory detentions or warantless searches. In the MA case, the MA Supreme Court has decided that the police need reasonable suspicion of a crime (as opposed to a mere civil infraction) to order someone to exit the vehicle. If the police had indicators that the driver was impaired, that would be sufficient. However, the mere odor of burnt marijuana alone (especially with multiple occupants) is not reasonable suspicion that the driver is impaired.
     
  20. 4949shooter

    4949shooter
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    Unfortunately, it is not any more.