Legalities of Vehicle Searches in Los Angeles When Police Claim to Smell Marijuana

California’s path from outlawing cannabis to legalizing adult-use has been swift, but the law has not kept pace with everyday police practices. Many drivers are still searched, and sometimes arrested, after an officer says, “I smell weed.” Whether that search is constitutional depends on a complex blend of Fourth-Amendment doctrine, the automobile exception, and the post-Proposition 64 statutory scheme. Below is an in-depth, practitioner-level guide written for drivers, attorneys, and anyone who cares about civil liberties on California roads. It incorporates the most recent appellate decisions through Sellers v. Superior Court (2024) and corrects common misconceptions that even seasoned officers sometimes hold. If you are charged with a crime as a result of an officer pulling you over and stating that they smell marijuana, you must discuss your case with a knowledgeable and aggressive drug crimes attorney as soon as possible.

The Fourth Amendment protects against unreasonable searches and seizures. A warrantless search of a car is presumptively unreasonable unless an exception applies. The most common is the automobile exception: if officers have probable cause to believe the vehicle contains contraband or evidence of a crime, they may search every part of the car, including closed containers, where that evidence could reasonably be found. But probable cause must rest on facts, not hunches, and courts analyze the “totality of circumstances” rather than any single factor. Odor can be part of that mix; the question is whether odor alone gives officers the fair probability that something illegal is present.

Proposition 64, the Adult Use of Marijuana Act (2016), declared that up to 28.5 grams of cannabis flower or 8 grams of concentrate possessed by adults 21+ is not contraband. Health & Safety Code § 11362.1, subdivision (c) states such lawful possession “shall not constitute the basis for detention, search, or arrest.” In plain English: if what an officer smells is something you can legally possess, the odor alone cannot justify rummaging through your car.

But Prop 64 also added new traffic-related offenses in § 11362.3:

• Smoking or vaping cannabis while driving or while a passenger in any motor vehicle (§ 11362.3(a)(1)).
• Possessing an open container or open package of cannabis in the passenger compartment (§ 11362.3(a)(4)).
• Any possession, open or closed, by drivers or passengers under 21 (§ 11362.3(a)(2)).

Because each is an infraction, evidence of an open container or underage possession can restore contraband status and probable cause. The key is whether the officer can articulate facts (sight, admission, visible container) that link the smell to one of those violations.

• Raw or unburnt odor generally suggests recently purchased or stored cannabis. If the amount is likely personal-use and there is no container violation, courts increasingly find no probable cause.
• Burnt odor might indicate in-vehicle smoking, an offense under § 11362.3(a)(1), but courts insist on more than an officer’s bare assertion. They look for corroboration: smoke haze, ashes, a warm pipe, watery eyes, or impaired driving.

• People v. Lee (2019) 40 Cal.App.5th 853. The Court of Appeal affirmed suppression where officers smelled a “faint odor” and found a lawfully possessed amount in the driver’s pocket. Odor plus minimal factors did not amount to probable cause after Prop 64.
• Blakes v. Superior Court (2021) 72 Cal.App.5th 904. Burnt odor alone, with no evidence it was “freshly” burnt, failed to justify a search; the court emphasized that legal cannabis is not contraband.
• People v. Castro (2022) 86 Cal.App.5th 314. Officers legitimately searched when they smelled fresh marijuana and discovered everyone in the car was under 21; because minors may not possess any amount, the odor alone established probable cause.
• Sellers v. Superior Court (2024) 104 Cal.App.5th 468. Plain-view observation of loose cannabis scattered on the floorboard, not sealed in any container, violated the open-container rule (§ 11362.3(a)(4)). The court held that this, plus occupants’ nervousness and false denials, supplied probable cause to search further, leading to the discovery of a firearm.

These decisions underscore that context is king. The same odor means different things when (i) everyone is of age and cannabis is sealed, versus (ii) loose buds are sprinkled around, or (iii) underage passengers are present.

• Myth #1: “Any smell equals probable cause.”
  Reality: After Prop 64, odor alone is insufficient unless combined with facts pointing to contraband (open container, DUI indicators, underage occupants).
• Myth #2: “If I find even a legal amount, I can search the whole car.”
  Reality: A lawful amount is expressly non-contraband. Finding it does not expand the search. Anything found beyond the permitted scope is suppressible under Penal Code § 1538.5.
• Myth #3: “Inventory search” cures everything.”
  Reality: Courts scrutinize inventory searches that appear pretextual. Lee rejected that justification because the car was being searched for evidence of crime, not for safekeeping.

Defense attorneys should:

• Demand the body-cam video. Does it show smoke, an open jar, or nervous glances? Absence of corroboration bolsters a suppression motion.
• Cross-examine on odor descriptors. Officers rarely distinguish “fresh,” “burning,” or “stale” odors with specificity; vague testimony weakens probable cause.
• Highlight legal containers. Even a re-sealed retail jar defeats an open-container theory.
• Check the occupants' ages. If at least one passenger was under 21, the odor may point to illegal possession, but only if the officer knew the ages before the search.

If an officer reasonably believes a driver is impaired, lane weaving, slow responses, bloodshot eyes, or the odor of burnt marijuana becomes one factor in probable cause to arrest for DUI, triggering a search incident to arrest. California Vehicle Code § 23152(f) criminalizes driving under the influence of any drug, and officers often use Drug Recognition Expert (DRE) protocols or field sobriety tests to establish impairment. However, odor alone does not prove impairment, a point repeatedly made by toxicologists and recognized in case law. A clean driving pattern plus odor should not justify an arrest.

• Keep all cannabis in the trunk or a locked glove compartment.
• Seal the original retail packaging; once opened, re-seal it or use a smell-proof, child-resistant container.
• Never smoke or vape in the car—even parked; the law treats smoking while a passenger the same as smoking while driving.
• Designate a sober driver when consuming any cannabis.
• Know your rights: You may decline consent to search; stay calm and record the encounter if possible.

Following these steps deprives officers of the extra facts they need to convert odor into probable cause.

Search-and-seizure litigation is detail-driven. Kraut Law Group Criminal & DUI Lawyer, Inc., led by former Deputy District Attorney Michael Kraut, has secured countless dismissals and not-guilty verdicts by exposing unconstitutional searches. We pore over dash-cam footage, subpoena maintenance logs for drug-detection canines, and bring in experts to challenge “odor-only” narratives. If you or a loved one were searched because an officer claimed to smell marijuana, every piece of evidence may be suppressed. Acting quickly is critical; suppression issues are typically decided at the first pre-trial hearing.

Contact Kraut Law Group Criminal & DUI Lawyers, Inc. at our Los Angeles office, 6255 Sunset Boulevard, Suite 1520, for a free, confidential consultation. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453. Or use our secure online contact form.