Legalities of Vehicle Searches when Law Enforcements Smells Marijuana

California has been at the forefront of marijuana legalization in the United States, beginning with the legalization of medical marijuana. With the passage of Proposition 64 in 2016, recreational marijuana use became legal for adults aged 21 and older. However, notwithstanding the decriminalization of marijuana in California, there are several scenarios which can subject a person to criminal liability. One of these scenarios comes about when a person is stopped by law enforcement while they are driving and their car is searched based solely on the officer's statement that they smell marijuana. Devastating consequences can arise from this scenario, including a charge of driving under the influence of drugs, drug possession, possession for sale of a controlled substance, or even simply being under the influence of drugs.

The Fourth Amendment

The Fourth Amendment of the United States Constitution protects individuals from unreasonable searches and seizures by law enforcement, and requires that those searches an seizure be supported by probable cause and a reasonable belief that a crime has been committed, is being committed, or will be committed. However, when it comes to the interpretation of probable cause as it relates to the odor of marijuana, California is much more specific.

Proposition 64 and the Fourth Amendment

Proposition 64 legalized the possession of up to 28.5 grams of cannabis by individuals 21 years or older. However, there are various restrictions on the use and possession of marijuana. Generally, marijuana and related marijuana products that are being used and possessed lawfully are not considered "contraband," nor are they subject to search and seizure. Furthermore, if someone is using and possessing marijuana in a legal way, then they cannot be detained, searched, or arrested, based on that lawful conduct. In other words, if someone is using or possessing marijuana illegally, then that would rise to probable cause for a person to be lawfully detained, searched, or arrested by law enforcement.

The Smell of Marijuana is Not Enough to Justify a Search Alone

In 2021, the California Supreme Court decided the landmark case of Blake v. Superior Court (2021) 72 Cal.App.5th 904. In this case, the California Supreme Court held that the smell of burnt marijuana is not enough to establish probable cause alone. Because neither detective could testify that the marijuana was freshly burnt, they were unable to establish that there was a 'fair probability that contraband or evidence of a crime' would be found in the defendant's car.

This type of circumstance is ideal for a smart criminal defense attorney. If any contraband was found as a result of that unlawful search, that evidence cannot be used against the defendant at trial, and a motion to suppress would very likely be granted.

If you are charged with a crime as the result of an officer pulling you over and stating that they smell marijuana, it is absolutely critical that you discuss your case with a knowledgeable and aggressive criminal defense attorney as soon as possible. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Los Angeles criminal defense attorney Michael Kraut has an extensive knowledge of filing pretrial motions to suppress evidence that was uncovered as the result of an unlawful search. Michael Kraut has successfully defended many cases involving drugs, and has an extensive knowledge of what does not constitute probable cause.

For more information about the criminal justice process, and to schedule your free consultation, contact Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.

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