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The Cops & The Marijuana Aroma
The distinctive aroma of marijuana, burning or not, is
recognizable by
much of the population. Additionally,
most police officers are trained to
recognize the odor.
How to Refuse a Police Search Video Guide
As a general rule, an officer who detects the odor of
marijuana has probable cause to search the person or place from which he
believes the odor is emanating.
In one recent Florida case, an off-duty police officer who was working
security at Funtastic Skating Center "smelled a very strong odor of smoked Cannabis"
emanating from a young man who entered the rink. The officer identified himself
as a police officer and took the minor into a nearby office where he proceeded
to search the boy’s pockets. He found a partially smoked joint and arrested
the minor.
The boy argued that the mere smell of marijuana did not give the officer
probable cause to believe that the boy was then, and there, in possession of
marijuana. The Florida court of appeal disagreed. The court explained that the
officer was trained to recognize the aroma of marijuana and that the aroma could
not be confused with any other legal substance. The court commented:
The sense of smell is perhaps not as keen in humankind as in other animals,
but some odors such as burned Cannabis are very strong and very
distinctive. A person who is trained to recognize the odor of marijuana and is
familiar with it and can recognize it has probable cause, based on the smell
alone, to search a person or a vehicle for contraband. (State v. T.T.
[Fla.App.5 Dist. 1992] 594 So.2d 839.)
Most courts agree with the Florida court that a trained police officer’s
detection of the marijuana aroma is sufficient to establish the probable cause
necessary to immediately search a person. It’s often possible, however, for
defense counsel to later attack the officer’s claimed olfactory abilities. In
particular, some cases have been won by cross-examining the officer about what
training he or she has received (usually none) with regard to the period of time
that it takes for the aroma to dissipate. Defense counsel should try and show
that the marijuana aroma can linger for a considerable period, and hence, its
mere detection does not make it probable that the person is currently
in possession of marijuana as required for probable cause. Likewise, the officer
can be cross-examined about what training he or she has received (again, usually
none) to distinguish, based on the odor alone, a person who has been in a room
with others who smoked marijuana from a person who himself smoked or possessed
marijuana.
Note that with respect to containers that smell of marijuana, the
courts have looked at the nature of the container from which the aroma was
emanating. Generally speaking, if the container was one that judges would
consider private, such as a briefcase, the courts have required that the officer
obtain a search warrant before searching despite the detection of the marijuana
aroma. On the other hand, if the container is less private in the eyes of a
judge (such as a brown paper bag), the courts are more likely to allow a warrant
less search.
Most courts permit an officer to conduct a warrant less search of a car if
the odor of marijuana is detected.
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