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Is the Smell of Marijuana Probable Cause to Search a Car in SC?

Spoiler alert: The smell of marijuana is probable cause to search a car in SC. For now. Even if the drug dog doesn't smell marijuana, and even though smokable hemp is absolutely legal in our state.

When an observation (smell) may indicate either 1) illegal activity (marijuana) or 2) legal activity (hemp), is that observation probable cause that a crime has been committed? Does it give an officer probable cause to hold you on the side of the road while they toss your car?

An increasing number of states have found that the odor of marijuana, formerly every police officer's go-to excuse to search your car, is no longer probable cause.

The Smell of Marijuana is Not Probable Cause to Search a Car Anymore in Some States

Some appellate courts across the country are "just saying no" to law enforcement's desire to search citizens and their vehicles anytime anyplace. The magic words, "I smelled marijuana," just aren't working anymore...

As the Court in Pacheco v. Maryland said two years ago, "The times they are a-changin':"

The officers testified that they observed Mr. Pacheco in the driver's seat of what they further described as a "suspicious," though legally parked, vehicle. They also testified to their detection of "fresh burnt" marijuana emanating from the vehicle and the joint they observed in the center console. These facts, without more, do not meet the standard for probable cause to arrest and thereby to search Mr. Pacheco.

Possession of small amounts of marijuana in Maryland is not a criminal offense - it is subject to a civil fine only. Possession of larger amounts of marijuana is still a criminal offense, but the Court was clear that the odor of marijuana or even the presence of a small amount of marijuana is not probable cause to search for more marijuana...

Similarly, in 2017, the Colorado Court of Appeals held that an alert by a drug dog is no longer probable cause to search because the dog sniff could reveal 1) criminal activity (more than an ounce of marijuana) or 2) lawful conduct (less than an ounce of marijuana):

Because a dog sniff of a vehicle could infringe upon a legitimate expectation of privacy solely under state law, that dog sniff should now be considered a "search" for purposes of article II section 7 of the state constitution where the occupants are twenty-one years or older. Cf. Kyllo v. United States, 533 U.S. 27, 34-40 (2001) (the use of a thermal imaging device to detect the growth of marijuana in a home was a "search" under the Fourth Amendment because the device was capable of detecting lawful activity).

Just last month, the Superior Court of Pennsylvania (appeals court), in Commonwealth v. Barr, also held that the odor of marijuana is no longer probable cause to search a vehicle because the odor implicates legal conduct as well as illegal conduct:

In granting Appellee's suppression motion, the trial court held that the odor of marijuana no longer provides police with probable cause to search a motor vehicle from which the odor emanates because a substantial number of Pennsylvania citizens can now consume marijuana legally, calling into question the so-called plain smell doctrine. After careful review, we agree with the trial court that the odor of marijuana does not per se establish probable cause to conduct a warrantless search of a vehicle.

In SC, like most states, smokable hemp - marijuana that contains less than .3% THC - is legal. Should the smell of legal hemp be probable cause to search your car in SC?

The Smell of Marijuana is Probable Cause to Search a Car in SC

For now, the SC Supreme Court has said that an officer's statement that he or she smells marijuana, no matter how ridiculous and incredible, is probable cause to search a person's car.

For example, in State v. Morris, in 2015, the SC Supreme Court held that an officer's claim that he smelled marijuana, even though his drug dog did not alert on the vehicle, was probable cause to search.

The officer's probable cause, approved by the SC Supreme Court, included:

  • The odor of marijuana (because this supercop's olfactory powers are greater than those of his K-9 companion);
  • Phillies Blunt cigars (because some people use them to smoke marijuana, although tobacco is obviously legal);
  • Red bull cans, which are "indicative of a need to stay awake for long periods of time while driving" (probable cause of what crime? Driving a long distance? Staying awake?);
  • And driving a rental car, "which is an indicator of drug trafficking" (No. Driving a rental car is an indicator that you rented a car, and you are now driving it somewhere...).

Even when a trained drug dog does not detect the odor of marijuana, the SC Supreme Court will accept the officer's testimony that his sense of smell is better than the dog's. This is why any police officer anywhere in the State of SC can search any person's car, simply by claiming they smelled marijuana.

By contrast, the Maryland court above made short shrift of the officer's claims "that he could smell the odor of raw and burnt marijuana through the open window when he was at the rear of the vehicle," because 1) his claim that he smelled both burnt and raw marijuana was ridiculous, and 2) they only found less than one gram of marijuana in the car:

Trooper Prentice testified that he could smell the odor of raw and burnt marijuana through the open window when he was at the rear of the vehicle. This [c]ourt takes issue with this testimony of Trooper Prentice and finds it not to be credible. Indeed, it is only reasonable to conclude that one (1) odor would trump the other odor, and that Trooper Prentice was not able to detect both raw and burnt marijuana. Also, this [c]ourt notes that the amount of raw marijuana located in the vehicle in a sealed Ziploc bag was only .79 grams. It is unfathomable to this [c]ourt that Trooper Prentice was able to detect the odor of both raw and burnt marijuana.

What if SC's courts found the same intellectually honesty and stopped rubber-stamping everything law enforcement does in our state?

Is the Smell of Hemp Probable Cause to Search a Car?

It's inevitable that this issue will find its way to the SC Supreme Court. SC cops are still searching people's vehicles based on the odor of marijuana, although the odor of marijuana is indistinguishable from the odor of smokable hemp and smokable hemp is absolutely legal in our state.

SC cops are also still arresting people for marijuana possession when they have no way of knowing whether the substance they are taking someone to jail for is illicit marijuana or legal hemp...

Probable cause, to search or to arrest, necessarily means the officer has probable cause to believe that the substance is marijuana and not some other thing that is 100% legal.

Got Axelrod?

If you have been charged with marijuana possession in SC, our drug crimes defense lawyer will get the evidence in your case, review the videos and reports, and help you to retain a drug dog expert to challenge the search when appropriate.

In most cases, there is no reason for you to walk away from a marijuana arrest with a conviction - even in the worst cases, you may still have options to keep the arrest off your record.

If you have been arrested and charged with possession of marijuana in Myrtle Beach, schedule a free consultation with a Myrtle Beach criminal defense lawyer on the Axelrod team. Call us at (843) 916-9300 or fill out our contact form today.

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