Under the 4th Amendment to the U.S. Constitution, stopping a vehicle constitutes a seizure of the driver and any passengers. While there is a lesser expectation of privacy with regard to the contents of a vehicle than with a home, the police must have an articulable, reasonable suspicion of a violation of the law in order to stop a vehicle. The police must then develop probable cause to effect an arrest for a violation of the law. So, what do those statements mean?
In order for law enforcement to stop a vehicle, the police must have a reasonable, articulable suspicion of a violation of the law. The officer cannot simply have a hunch. The officer must be able to articulate the reason and suspected violation. While the vehicle is stopped, the officer must develop probable cause to effect an arrest or obtain a search warrant. What this means is that a police officer may stop your vehicle if they suspect you have committed a violation of the law (e.g., fail to stop at a stop sign) and temporarily detain you. While the vehicle is stopped, the officer may develop probable cause to search your vehicle if they see marijuana or other contraband (i.e., drugs, firearms, etc.) in your vehicle.
The officer is permitted to make a pretextual stop (i.e., the officer stops your vehicle because he/she believes that you have committed a different violation or crime), provided the officer has probable cause to believe that the law for which the vehicle was stopped was violated. For example, in Whren v. U.S., the United States Supreme Court held that the seizure of illegal drugs was constitutional even though the police stopped a car for a traffic violation as a pretext to investigate a hunch that the occupants possessed drugs.
Law enforcement generally does not have probable cause to search an automobile, but officers often attempt to gain the consent of the individual to conduct a search of the vehicle. Once the vehicle has been stopped, the police often ask, “Do you have anything in the car I should know about?” The answer to this question is always “no, officer.” The officer may then ask for your consent to search the vehicle. Again, your answer to this question should be “no.”
While law enforcement typically lacks probable cause to search your vehicle, if the officer sees marijuana or other contraband in your vehicle, the officer can immediately seize the contraband under the plain view exception to the 4th Amendment. These items may be seized without a warrant because there is no reasonable expectation of privacy in items that are exposed to the public. Moreover, seeing marijuana or other contraband in your vehicle will provide the officer probable cause to effect an arrest and search your vehicle.
Even if the police officer does not see marijuana in your vehicle, Ohio recognizes the “plain smell” doctrine. In State v. Moore, the court held that the “smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to conduct a search.” Thus, once the vehicle is stopped and the officer smells marijuana emanating from the vehicle, probable cause is established to search the vehicle.
The 4th Amendment does not require law enforcement to obtain a warrant to search a vehicle if they have probable cause to believe that it contains marijuana or other contraband. The inherent mobility of the vehicle creates an “exigent circumstance,” which removes the need for a search warrant. Therefore, if the police smell marijuana emanating from the vehicle, the police may search the passenger compartment of the vehicle, locked containers in the vehicle, and the trunk of the vehicle. The search may even extend to passengers’ belongings.
While the smell of marijuana may be easily detected if the occupant(s) of a vehicle is smoking it, what if it is “raw marijuana” (i.e., marijuana that has not been burnt or harvested, but is simply growing)? In State v. Woljevach, the court questioned whether the “plain smell” rule of State v. Moore could be extended to the detection of the odor of raw marijuana by an allegedly qualified “drug sniffing deputy.” However, the defendant did not make a sufficient showing to rebut the deputy’s claimed ability, and to overcome the judge’s reliance on the deputy’s claim. Thus, there remains the possibility that if a defendant makes a sufficient showing to counter law enforcement’s claimed ability, the “plain smell” rule would not be sufficient to develop probable cause.
If the officer cannot develop probable cause for an automobile search, the officer may still conduct a search based on search incident to arrest. For example, if the officer discovers an outstanding arrest warrant, the officer will be able to arrest the person and conduct an automobile search incident to arrest. However, the officer must establish a link between the offense and the search. Thus, if there is an outstanding warrant for assault, the officer may have a difficult time establishing the link between the search and the warrant. However, if the warrant is for trafficking in marijuana, possession of marijuana, illegal cultivation of marijuana or drug paraphernalia, the officer will be able to establish the link based on a search for marijuana and the nature of the offense. Additionally, the police will be able to conduct a search of the occupant’s person under the same search incident to arrest.
Another exception to the probable cause requirement is called an inventory search. Regardless of the offense, if the officer’s department has an established policy of conducting an inventory search, the officer may search, or inventory, the driver’s vehicle. If the policy covers a vehicle’s trunk, the officer may inspect the trunk.
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 more information on marijuana law in Ohio, consult Johnson Legal, LLC’s Marijuana FAQ.