Is Marijuana's Odor Enough to Warrant a Search?

Is Marijuana's Odor Enough to Warrant a Search?
Posted by FoM on May 24, 2000 at 08:59:23 PT
By Frank Hinchey, Dispatch Staff Reporter 
Source: Columbus Dispatch
A whiff of marijuana was all one State Highway Patrol trooper said he needed to search a motorist and his car for drugs. It will be up to the Ohio Supreme Court to decide whether that's enough. Justices yesterday heard arguments concerning the legality of a search conducted by the trooper, who said he smelled marijuana during a traffic stop in Lancaster. 
On Feb. 28, 1999, patrol Sgt. Jeff Green pulled over Christopher M. Moore for running a red light. Because of the strong odor that Green said he smelled, he searched Moore outside his car and found drug paraphernalia in his coat. Inside the car, Green found a burned marijuana cigarette in the ashtray. He had no search warrant. Moore's attorney filed a motion to suppress the evidence from the search. The motion was granted by the Lancaster Municipal Court, and Moore was acquitted of possession of marijuana and drug paraphernalia. The decision was reversed by a Fairfield County appeals court. It said a trained officer can rely on his sense of smell as probable cause to search a car for marijuana without a warrant. Attorney Scott Wood argued that the trooper needed more-tangible evidence to conduct the search. The municipal court ruled that there is no "plain smell'' exception to a person's constitutional protection against unreasonable search. "The issue is whether the odor of burned marijuana alone, without any other tangible evidence of drug use, provides all the reason for the state to search a person or that person's motor vehicle under the 4th Amendment of the United States and its Ohio counterpart,'' Wood told the justices. Justice Francis E. Sweeney asked Wood whether there was any evidence to cast doubt on what the trooper smelled. "Sgt. Green did testify that the odor was distinctive and strengthened as he approached the car,'' Wood told Sweeney. "And he could not tell if it was coming out of the car or the person.'' Chief Justice Thomas J. Moyer asked whether odor alone was becoming a trend for probable cause in marijuana searches. "For vehicles, there is a trend in federal courts and state courts that odor alone is sufficient,'' Wood said. The smell-only standard is not as strong a trend in searches involving people. He said that would constitute a greater invasion of privacy. He cited other court jurisdictions, such as in Michigan, where the smell of marijuana is just one factor in search cases involving vehicles. Wood argued that because smoke can cling to clothing, more evidence is needed before a warrantless search is conducted. "It is precisely for this reason,'' Wood wrote in his legal papers, "the court should be even more cautious when basing probable cause on a smell. By requiring the officer to use smell as one factor . . . it protects against unreasonable search and seizures.'' David Trimmer, an assistant city prosecutor in Lancaster, argued that Green knows the scent of marijuana, and because of his training in its detection, he met the probable-cause standard for a search without a warrant. "Nothing else smells like marijuana,'' Trimmer wrote in court papers. "It has a very distinct odor.'' Published: Wednesday, May 24, 2000Copyright  2000, The Columbus Dispatch Related Articles:Smell of Drugs Gives Police Right to Search of Pot Not Should Not Warrant Search Court Rules MJ Odor May Warrant Searches View Next 20 Articles:
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Comment #4 posted by kaptinemo on May 24, 2000 at 17:47:42 PT:
A little bit that like being
a 'little bit pregnant'?My question remains valid. Whether he was mildly buzzed or tripping on the same truly cosmic Haze I had once, he was behind the wheel. The *degree* of impairment is a side issue; it was the *fact* that he was impaired that made him dangerous. Studies done on a closed track under controlled conditions are one thing, but I don't care to share a multi-laned Interstate at 65+ MPH with someone conducting his own personal experiments in alkaloid-affected driver-reaction timing. Whether it be alcohol or cannabis, the ultimate outcome can be equally tragic. And especialy so for our side. Because the weed truly is for *peace*; I've never witnessed a single fight amongst users, not a one, in ten years. But every time I've been in the presence of someone using alcohol, a fight broke out. I always have used the weed responsibly. And that included not driving under the influence. I expect a sloppy, non-self-respecting drunk to that. But if *we* do it, we only make it harder to convince the fence-sitters of this country that our position on cannabis legalization is a valid argument.
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Comment #3 posted by CongressmanSuet on May 24, 2000 at 16:58:53 PT:
Im with you both on this...
I dont believe anyone should ingest any mind altering substances and hop behind the wheel, its just common sense. BUT, I am certainly in agreement as to severity of incapacitation, comparing Cannabis to comparison.Alcohol loses hands down. Oh, and while we are on it, I believe a credible defense to the cop "smelling marijuana" would include a cross examination asking exactly what his training was in smell detection, how many hours, etc. Many cases have been won when the officer tells about his 1 hour class, or admits to his lack of extensive knowledge.
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Comment #2 posted by freedom fighter on May 24, 2000 at 12:33:52 PT
New Zeland did a research on drugs and drivings and they find that a small group of people who do pot but do not drink are the best drivers of the group. The group had the lowest accident rate. That is something to think about. The antis will try to build the ammunition anyway they can.Any cop can say they smell something when there is no smell.. Just how many people get stopped and searched only to find nothing. The cops let them go but hey, we do not hear stories about that. I am willing to bet it happen everyday now.It happened to me long time ago, Texas cops stopped me and the officer told me that he smelled pot. I told him I dont smell anything. He ask me to search the truck. I told him NO. He ask me why, I ask him do you have a warrant. Eventually, cops searched the truck and found a joint. Cops ask me if it is mine. I said NO.. I explained him that I had let someone drove my truck while I was in town. (that was a fib). Apparently, the cops believed me and let me go with a traffic ticket. They probably kept the joint and smoke it. It was a good herb! The "odor" has so many variable to it and it is not a good probable cause for some cops to step on someone's rights.For example, one could burn an incense that smells like marj., and you could say that is where the smell is coming from. Does that mean a cop has a probable cause to get a warrant or not? I know you meant well, but your statement about pothead drivers endangering people really comes from the antis.. I have not yet heard of a person who smokes a joint driving and killing someone except for that Reefer Madness movie..:)We all should be responisble about where we do the smoking..Peace
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Comment #1 posted by kaptinemo on May 24, 2000 at 09:48:59 PT:
Of two minds on this.
As much of a staunch supporter of civil liberties as I am, and as hateful as I find this kind of search, the question must be asked: Why did this guy think he had the right to endanger other drivers and pedestrians alike by getting stoned and driving? Sometimes we are our own worst enemies, and, in the case of this fool, hand the antis all the ammunition they need. This kind of 'shallow end of the gene pool' behavior does us all a great disservice.
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