Let’s begin with a common question – “If the police smell marijuana emanating from my house, can they enter my house without first obtaining a search warrant?” The answer is most likely “no.” Most people are familiar with the phrase “your home is your castle.” This phrase is a cornerstone of the U.S. legal system and the 4^th Amendment to the U.S. Constitution, which protects individuals against unreasonable searches and seizures. This protection is particularly important when it comes to a person’s home.

Unlike the situation where an officer smells marijuana in a vehicle, which gives the officer probable cause to search the vehicle, a police officer smelling marijuana outside your home does not give the officer the ability to search the home. The officer will have to obtain a search warrant in order to enter the home to conduct a search.

However, before any discussion can take place regarding the search of a home for marijuana, the word “home” must be defined. This may seem obvious (i.e., where you live), but the definition includes any place where you have a reasonable expectation of privacy. Thus, an overnight guest in a home or hotel room has the same reasonable expectation of privacy, at least as to the areas of the home or hotel in which the guest has permission to enter, as a person who owns a home.

As a general rule, the police must obtain a search warrant before they can enter and search your home. In order to obtain a search warrant, law enforcement must persuade a judge that there is specific evidence of a crime in the house. This is known as probable cause. While there are certain exceptions to this general rule (i.e., consent, exigent circumstances, search incident to lawful arrest, etc.), the police are generally required to obtain a search warrant before entering a home. A search warrant is required because of the high expectation of privacy in one’s home.

If the police smell marijuana emanating from the home, the officer will be able to use that observation as a fact supporting probable cause and, thus, a search warrant. However, absent other evidence (e.g., information from a known, reliable informant or evidence discovered in plain view), law enforcement will have difficulty obtaining a search warrant. Therefore, if an officer smells marijuana coming from your residence, the officer will most likely attempt to gain access via consent.

Consent is an exception to the search warrant requirement. If given by the resident, consent can serve to eliminate the need for police to have probable cause as well as to obtain a search warrant. While giving consent to enter the residence does not necessarily mean the police can search the home, the police can make use of the plain view doctrine. However, no person should ever give consent to a search of their house, vehicle or person.

The plain view doctrine is another exception to the search warrant requirement. Three elements need to be established:

1. The police must gain access through consent, a search warrant, or exigent circumstances (i.e., the police must have entered the area lawfully);
2. The item must have been in plain view, not requiring any manipulation to observe; and
3. The officer must immediately recognize the item as contraband.

Thus, if the police are given consent to enter the home and see marijuana or marijuana paraphernalia on a table, the police can immediately seize the items without obtaining a warrant.

“What if I give the police permission to enter my house and they smell marijuana?” First, you should never have given permission to the police to enter your house. However, even if the officer smells marijuana, the officer most likely cannot conduct a search of the residence. The officer needs probable cause to conduct a search and an odor in the residence does not create it. The previous owner or tenant may have smoked marijuana so often that the residence retains a marijuana scent or a guest may have smoked marijuana outside your home. While a marijuana odor may give the police a reason to investigate further, it does not give them the ability to conduct a search of your home.

“What if the police use a drug canine to smell for marijuana around my residence?” The police can use a drug-sniffing canine to detect marijuana coming from your apartment, but the dog must remain in the public areas of the apartment complex. A dog detecting marijuana coming from your residence may allow the police to obtain a search warrant to enter your apartment, but would not permit the police to enter your residence absent a search warrant. As to a house, using a dog to detect the presence of marijuana is a search if it involves physical intrusion onto constitutionally protected property (i.e., the land upon which the house sits). This would violate a reasonable expectation of privacy and, thus, would violate your 4^th Amendment rights against unreasonable searches and seizures.

Columbus and Delaware, Ohio Criminal Defense Attorney

If you have been charged with a marijuana-related offense in Columbus or Delaware, Ohio, call Attorney David Johnson of Johnson Legal, LLC at (614) 987-0192 to discuss your case. For further information, consult Johnson Legal, LLC’s Marijuana FAQ.