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.
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?
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: