Marijuana Scent Is Probable Cause To Search Vehicle
Both the Fourth Amendment of the United States Constitution and the Michigan Constitution guarantee the right of every person to be secure from unreasonable searches and seizures, and provides that no warrants can be issued without probable cause. Searches conducted without a warrant are considered to be per se unreasonable, subject to a few exceptions which have been specifically established.

Generally, evidence is inadmissable as substantive evidence in a criminal proceeding if it was obtained in violation of the Fourth Amendment. In order for a search to be in compliance with the Fourth Amendment, the police must show that either they had a warrant to search, or that the search fell within one of the narrow, specific exceptions to the warrant requirement. One of the exceptions to the warrant requirements is the automobile or motor vehicle exception which is premised on an automobile's ready mobility and pervasive regulation. Under this exception, the Fourth Amendment permits police to search a vehicle without a warrant if the car is readily mobile and probable cause exists to believe the vehicle contains contraband. Probable cause to search a vehicle without a warrant exists where there is a "substantial basis" for inferring a "fair probability" that contraband or evidence of a crime will be found in a particular place. Therefore, under the automobile exception, the police may search a motor vehicle without the necessity of first obtaining a warrant if probable cause to support the search exists.

Whether there is a basis to suppress evidence seized from a defendant's vehicle requires a two-step analysis. Where a stop of a vehicle is permissible, one must first ask if probable cause to search existed. If that question is answered in the affirmative, there is no basis to suppress evidence seized thereafter. When performing this analysis, we need to keep in mind that new laws have been passed just this year which now state that the smell of marijuana alone by a person qualified to know the odor may establish probable cause to search a motor vehicle pursuant to the motor vehicle exception to the warrant requirement.

Here is a hypothetical of how the new law can apply. Tom is driving 85 miles in a 70 mile per hour speed zone. Tom gets pulled over by a police officer. The police officer orders Tom out of the car and asks for his license, registration, and proof of insurance. Tom provides the officer with the information. However, in the meantime, the police officer smells the odor of burnt marijuana coming from inside the car and decides to search the car, i.e., without a warrant. During the search, he finds a bag of marijuana under the driver's seat. We must first ask whether the probable cause to search existed. At the time of the stop of Tom's vehicle, the officer did not have a substantial basis for inferring a fair probability that contraband or evidence of a crime would be found. However, after smelling the odor of burnt marijuana, the odor alone provided the officer probable cause to believe that contraband was present. The odor provided a substantial basis for inferring a fair probability that contraband or evidence of a crime would be found. Under this type of circumstance, probable cause to search for marijuana existed, and, under the Fourth Amendment, the police officer was permitted to search the vehicle under the automobile exception to the warrant requirement without more, including closed containers in the vehicle that might conceal the object of the search. In this case, therefore, there is no basis on which to suppress the evidence that was seized from Tom's vehicle.

This article does not constitute legal advice. Criminal matters can be very complex. When questions arise based on specific situations, direct them to a knowledgable attorney.