Warrantless searches are generally legal only if there is consent or a law enforcement officer spots something suspicious in “plain view.”
But what if the warrantless search begins with an officer declaring, “I smell the odor of marijuana?”
This simple phrase has historically opened the door — literally and figuratively — for police to access people’s vehicles and property without any other justification.
In a paper forthcoming in the Southern University Law Review, Meghan Matt, a J.D. Candidate at the Southern University Law Center, tackles the tough questions of whether just smelling marijuana gives the police authority to conduct a search.
“An area of law that once seemed untouchable has now been challenged,” Matt explains, citing that this is a time when marijuana is increasingly becoming decriminalized, and it’s leaving states and jurisdictions alike in need of a universal resolution.
Matt offers two distinct solutions.
To begin with, Matt argues that since many states have moved to legalize and decriminalize both marijuana and hemp for medical and recreational use, the “plain-smell doctrine” has been enforced inconsistently and inadequately.
Worst of all, Matt adds, it’s prejudicial.
“Because odors are ambulatory, in most circumstances, they cannot provide an officer with more than a mere suspicion of criminal activity,” Matt wrote.
She proposed instead an “odor-plus standard.”
Matt prefaced that with a description of the other “plain” doctrines which encompass most of our five senses, linking them to our Fourth Amendment right to protection from unlawful searches and seizures.
For Plain Touch, otherwise known as “stop-and-frisk”, it has been determined that officers must stop examining an object as soon as they are satisfied that the item is not a weapon.
For Plain Sight, courts have added multiple restrictions determining when an officer can seize an object, most notably that an evidence must have been discovered “inadvertently.”
For Plain Hearing, the evidence must have been heard without the aid of a listening device.
Many, if not all of these limitations are the same across the country. This is why, Matt argued, plain smell is increasingly problematic.
A universal solution to handling Plain Smell in the era of marijuana decriminalization is needed even more because there is a concern of racial bias. She notes that research shows African- American and Latinx individuals are more likely to be targeted by Plain Touch and Plain Sight while walking around, or being pulled over in a traffic stop.
In 2019, 13,459 Plain Touch stops were recorded by the New York Police Department, according to the New York Civil Liberties Union. Of those, 8,867 stops uncovered nothing (66 percent), and 59 percent of those were African American. Some 29 percent of the individuals wrongly stopped were Latinx.
Turning to the bias involved in Plain Smell stops, Matt cited another paper describing a Drug Engofrcement Agency (DEA) training program called “Operation Pipeline.”
The paper encouraged officers to “learn how to lengthen a routine traffic stop and leverage it into a search for drugs by extorting consent or manufacturing probable cause.”
The same training program adds, “[i]f a driver who has been stopped refuses to consent to a search, the police can develop the probable cause they need to look inside simply by claiming to smell marijuana.”
This underlines how the use of plain smell encourages officers to use the law “in order to justify profiling,” Matt wrote.
Matt’s “odor-plus standard” adds other factors that need to be present in order to justify probable cause for a warrantless search.
- Knowledge of an individual’s prior illicit activity prior, including narcotics violations;
- Observation of a hand-to-hand transaction prior to the stop;
- Nervousness or signs of impairment; and,
- Evidence of large amounts of cash in the individual’s possession.
“Odor-plus” would need ratification in a Supreme Court ruling, or a change in federal sentencing guidelines, Matt acknowledged.
But she argued that under the stricter standard, a police officer could not use the smell of marijuana alone as their reasoning to conduct a warrantless search and invade someone’s privacy.
“This ‘odor-plus’ standard would provide more balanced anchors in the proverbial tug-of-war between state and individual interests,” Matt concluded. “Furthermore, corroboration is a well-utilized legal tool, and one that could help legitimize the statements of a singular individual.
“We must remove this rubber stamp from the hands of police and restore the right to privacy.”
The full paper can be accessed here.
Andrea Cipriano is a staff writer for The Crime Report