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Is The Smell Of Marijuana Enough For Police To Search Your Car?

April 28, 2021

By Van Der Veen, Hartshorn, and Levin

The issue surrounding when, and under what circumstances, a police officer can search a vehicle is always a complex one. Law enforcement officers must have reasonable suspicion that a crime has taken place when they pull a driver over on the road. If they believe criminal activity is taking place, they can then conduct a search. Police officers do not have to obtain a search warrant as they do in other situations due to the fact that a driver could easily flee the scene in the meantime. However, officers must have probable cause to conduct a search of the vehicle.

Many factors can give police officers probable cause that a driver is under the influence of drugs or alcohol. For example, bloodshot eyes, slurred speech, or an open container can provide probable cause. While many people assume the smell of marijuana is also enough to give an officer probable cause, that is not the case.

The Superior Court’s Decision on the Odor of Marijuana

It was in September of 2020 that the Superior Court of Pennsylvania decided on the case Commonwealth v. Barr. In this case, police officers stopped the defendant, Barr, and after smelling the odor of marijuana, searched Barr’s vehicle. During the search, a handgun as well as a small amount of marijuana was found. The Commonwealth argued that the smell of marijuana was enough to give officers probable cause, but the Court rejected that argument.

The fact is that medical marijuana in Pennsylvania is legal and so, a person may smell like marijuana, but not be under the influence of it while they are driving. It is similar to a person having one beer before they get behind the wheel. An officer may smell the odor of alcohol on the person’s breath, but that does not mean they are driving while drunk. As such, the smell of alcohol or marijuana alone does not provide probable cause because they are legal substances in certain situations. Still, individuals that are pulled over should remain cautious.

An Investigation Could Provide Probable Cause

The odor of marijuana alone is not enough to provide a law enforcement officer with probable cause that a person is driving under the influence. However, an officer may further investigate, and the results of that investigation can provide probable cause for a search, or even an arrest.

For example, when a police officer pulls someone over for a suspected DUI, they may ask the driver how many drinks they have had. If the driver admits to having several drinks, that can provide probable cause to search the vehicle. Likewise, an officer may ask a driver when they last smoked marijuana. If the driver admits to smoking at all, that could provide an officer probable cause because it is only legal to vape marijuana in the state. It is not legal to smoke it.

Due to the fact that officers are allowed to ask questions that could provide them with probable cause, it is always wise to remain polite but to avoid answering any of the officer’s questions that may incriminate yourself.

Our Criminal Defense Lawyers in Pennsylvania Can Help with Your Charges

If you have been arrested or charged with driving under the influence, our Allentown criminal defense lawyers can help with your charges. At van der Veen, Hartshorn, Levin & Lindheim, we know how to defend against illegal searches and the charges that result from them and we want to put our experience to work for you. Call us today at (215) 486-0123 or contact us online to schedule a consultation and to learn more about how we can help.



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