Question: If you smell marijuana while at a suspect’s home or vehicle, do you have probable cause for a search?
Quick Answer: Yes.
State of Ohio v. Harris, Eighth Appellate District, Cuyahoga County, Aug. 29, 2013
State of Ohio v. Green, Eighth Appellate District, Cuyahoga County, Aug. 29, 2013
Facts in Harris: Cleveland Police Officer Hodous and his partner were patrolling in an area of high drug activity. They pulled into a parking lot and noticed five to six men standing around a white Chevy. As the officers drove closer to the vehicle, a man exited the passenger side and ran. Officers noted a strong smell of fresh marijuana as they got closer to the vehicle. Quaison Harris had remained in the Chevy and was asked to exit the car. He was patted down, and a small bag of marijuana was found in his pants pocket. The officers searched the car and found a prescription of codeine cough syrup, which did not belong to Harris, and a bag of heroin in the passenger side door. Harris filed a motion to suppress on the grounds the search violated his constitutional rights.
Facts in Green: Police arrived at Gregory Green’s home after receiving an anonymous tip on an open warrant. Detective Riegelmayer took the police canine around the back of the house. The detective could smell a strong odor of marijuana coming from the house, but the canine did not alert because his command was to be alert for a possible bite-order, not narcotics. Sgt. Sharpe and Detective Robinson also went around the back of the house and confirmed the smell of marijuana. The officers saw an exterior ventilation system coming from the second floor with one air conditioner that was on (it was 6:30 a.m. and cool outside). The house had covered windows and drawn shades. The officers believed it was a grow house and sought a search warrant. The search warrant was received, and the police performed a protective sweep and search of the home. They obtained 122 plants, 14 large and 31 small vacuum-sealed bags of marijuana, and a firearm. Green argued that police did not smell marijuana coming from inside the house because the air conditioner was not connected to the basement (where the plants were), and his neighbors testified they had not smelled the marijuana.
Importance: In both cases, the court found sufficient evidence for probable cause because the officers were qualified to recognize the odor of marijuana. In
Harris, the distinct scent of marijuana allowed the police to search a motor vehicle under the automobile exception to the warrant requirement, and in
Green, it allowed the officers to obtain a search warrant even though neighbors said they had not smelled marijuana. If you approach a car or a house and smell marijuana, you have probable cause for a search as a qualified person who recognizes the smell.
Keep in Mind: The key is that you are the qualified person. You will have to outline your qualifications in the search warrant affidavit or in your police report. In addition, you should be prepared to defend your qualifications to a defense attorney, judge, or jury. This could mean discussing any training, classes, or field experience that gives you the skill to identify the scent of marijuana.
More on Search and Seizure
But he said I could look in here: You pull a car over with several passengers and ask the driver to get out. After some discussion, you ask the driver if he consents to the search of the car. The driver says “yes,” and you find several guns, a mask, gloves, and an ID badge belonging to none of the individuals in the car. After the search is complete, one of the passengers pipes up and says the car is his and he did not give you permission to search. Is the search invalid? In
Saleem, the court said no, finding that a third party who has the same control over and relationship to the property may give consent. In this case, the driver was controlling the car, voluntarily consented to the search, and could have also gotten in trouble as a result of the findings of the search. And since the true owner heard everything and did not say no before the search was done, the driver’s consent was valid and the search was proper.
State of Ohio v. Saleem, Eighth Appellate District, Cuyahoga County, Aug. 29, 2013.
You may want to find a new hiding spot for your drugs. When performing a search of a vehicle, you note an open cigarette box under the passenger seat. You cannot make out exactly what is in it, but you know it is not cigarettes. You reach under the seat, open the box, and find heroin pills. Did the act of taking the cigarette box from under the seat to open it constitute an illegal search? The court in
Webb said no. The officer had reasonable, articulable suspicion to conduct the search in the first place. When he looked under the seat, the cigarette box was in plain view. Based on experience and training, he knew it was common for people to hide drugs in cigarette packages. The court said it was proper for the officer to then open the cigarette package and look inside.
State of Ohio v. Webb, Second Appellate District, Montgomery County, Sept. 6, 2013.