Police cannot use marijuana odor to justify warrantless search

Recent court rulings say odor alone cannot be used to perform a search

The Supreme Judicial Court has issued a number of rulings in recent years concerning what right police in Massachusetts have to use the smell of marijuana as a reason for searching a person's car without a warrant. According to Boston.com, in 2011 the court determined that the smell of burnt marijuana could not be used as a justification for a search. This summer, in a case stemming from a drug possession case, the court also ruled that the smell of unburnt marijuana was an insufficient reason for conducting a search.

Small amounts of marijuana legal

The most recent case from this year centered on a man who had been charged with marijuana possession with intent to distribute. According to the Boston Globe, police searched the man's vehicle after responding to a car accident and found a backpack full of unburnt marijuana. The police said they conducted the search after detecting a strong odor of unburnt marijuana coming from the vehicle.

However, the state's top court this summer determined that such a search was illegal and therefore threw out the evidence used to charge the man. Because of a referendum in 2008 that decriminalized possession of less than an ounce of marijuana, the court concluded that the odor of marijuana alone was insufficient reason to justify a search. In other words, it would be impossible for police to tell simply through such an odor whether a person possessed more or less than an ounce of marijuana.

Federal prohibition not a justification

The police had also argued that the search was justified because, although Massachusetts voters had decriminalized the offense, federal laws against possession of small amounts of marijuana are nonetheless still in effect. The court, however, rejected that argument, saying that it failed to provide an "independent justification" for conducting a search without a warrant.

The court also noted that, based on a similar ruling it made in 2011 concerning burnt marijuana, it would be in the interests of consistency for the court to now rule that the smell of unburnt marijuana could also not be used to justify a warrantless search.

Criminal defense

When defending against a criminal charge, as the above story demonstrates, questions about police conduct can play a central role. It is vital that a defendant's rights are upheld throughout the criminal justice process, including before and after an arrest, but doing so often requires years of experience with the legal system.

Those who are facing a criminal charge should therefore contact a criminal defense attorney to discuss their options. An experienced attorney will be able to provide expert advice about a client's case, including what steps can be taken to ensure their constitutional rights are protected.