I was recently pulled over and the officer came up to my window and immediately accused me and everyone in the car with me of smoking marijuana because she "could smell it when our car drove by." I am wondering if there is any way I could know in the future when a search of my car or self does not require my consent, and the officer is legally allowed to do as he or she pleases. Is claiming to smell marijuana enough of a probable cause? Is there any way I could defend myself in this situation?
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Drug Crimes, Substance Abuse Guidelines of Probable Cause
- Thread Starter audd
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jharris352
New Member
Yea, don't smoke marijuana in your car! 
Really, cops don't ride around looking for people to search.
Really, cops don't ride around looking for people to search.we hadn't been smoking in the car but we had just come from a party in a house where smoking was permitted so we all reeked. I did not speed or break the law in any way that would give the officer any reason to pull me over, and when I asked why I had been pulled over she told me that I had been swerving all over the road which was a ridiculously untrue statement.
mightymoose
Moderator
A search almost always requires your consent. Be assertive when you deny permission to search. When you get out of your car make sure you roll up your windows and lock your door behind you (don't lock yourself out).
If the officer still searches anyway he/she will have to justify the reason. The more assertive you are denying permission (and I don't mean being rude, just being clear and firm) and the more proactive you are by keeping windows up and doors secured, the harder it will be for the officer to search.
If you are searched anyway and feel it was unjustified then you can always talk to an attorney to determine if your rights were violated.
Anyway.... smelling marijuana is enough reason to have a look inside the car, but if the officer starts opening containers and digging through purses then he/she is likely going to have a hard time justifying the warrantless search. if they can smell marijuana but it is not in plain view, and if they are determined to search the car in detail to find it, then they are SUPPOSED to obtain a search warrant to do so.
It is quite easy to get a person to consent to a search without realizing they have done so, which may have been the case here. If they obtain your consent, or even implied consent, then the warrant is not an issue.
If you received any citation out of this then you can probably defeat it. The officer claiming to smell marijuana in the car as it drove past sounds pretty bogus. If the officer had seen you weaving along the road then a sobriety test would have most certainly been conducted... and you didn't mention that.
Sounds like this officer was just fishing. You were thrown back.
If the officer still searches anyway he/she will have to justify the reason. The more assertive you are denying permission (and I don't mean being rude, just being clear and firm) and the more proactive you are by keeping windows up and doors secured, the harder it will be for the officer to search.
If you are searched anyway and feel it was unjustified then you can always talk to an attorney to determine if your rights were violated.
Anyway.... smelling marijuana is enough reason to have a look inside the car, but if the officer starts opening containers and digging through purses then he/she is likely going to have a hard time justifying the warrantless search. if they can smell marijuana but it is not in plain view, and if they are determined to search the car in detail to find it, then they are SUPPOSED to obtain a search warrant to do so.
It is quite easy to get a person to consent to a search without realizing they have done so, which may have been the case here. If they obtain your consent, or even implied consent, then the warrant is not an issue.
If you received any citation out of this then you can probably defeat it. The officer claiming to smell marijuana in the car as it drove past sounds pretty bogus. If the officer had seen you weaving along the road then a sobriety test would have most certainly been conducted... and you didn't mention that.
Sounds like this officer was just fishing. You were thrown back.
CdwJava
Moderator
If he was fishing, he either got a real lucky guess and pulled over people that "reeked," or he really did smell it as they passed by. Having noted the same thing in passing vehicles with smelly passengers, I can vouch for this as a very real possibility.
As for the scope of the search, I cannot speak to the status of the law in NY but it would not take a great deal of articulation to support a probable cause search for marijuana inside the car on the basis of smell out here. Opening up the trunk or locked containers in the car might be a stretch, but anywhere that the stuff could be stashed would almost certainly be fair game.
Some people who smoke this stuff or who go to parties where it is used don't seem to understand just how distinctive the aroma can be even on the clothing and backpacks of people who were in the area.
As for the scope of the search, I cannot speak to the status of the law in NY but it would not take a great deal of articulation to support a probable cause search for marijuana inside the car on the basis of smell out here. Opening up the trunk or locked containers in the car might be a stretch, but anywhere that the stuff could be stashed would almost certainly be fair game.
Some people who smoke this stuff or who go to parties where it is used don't seem to understand just how distinctive the aroma can be even on the clothing and backpacks of people who were in the area.
Well it was 2am the day before thanksgiving, so I assume they were checking for drunk drivers. I was also driving through a terrible part of town, but I find it hard to believe this cop would have been able to smell the marijuana on our clothes from her car. I assume she wasn't sitting there in 40 degree weather with her windows open, so she probably couldn't smell it until she had already pulled me over. She really had no legitimate reason, but it seems a legitimate reason is far from necessary these days.
CdwJava
Moderator
Patrol training 101 - drive with the windows at least partially down so that you can hear and smell the world around you.
I suppose if you want to think the officer was randomly pulling cars over in hopes of finding something, you can believe that. It might even be true (though I find it less than likely).
In the future, avoid those types of parties and this sort of issue will not come about.
Fortunately for you, no charges are pending so it's all for naught.
I suppose if you want to think the officer was randomly pulling cars over in hopes of finding something, you can believe that. It might even be true (though I find it less than likely).
In the future, avoid those types of parties and this sort of issue will not come about.
Fortunately for you, no charges are pending so it's all for naught.
mushrock58
New Member
search n seizure its their word against yours
we recently had the same type of thing happen. only the off. said he smelled unburned marijuana, we showed him our state id cards and he still searched our vehicle without our consent. in the trunk he found cash we had won in nevada gambling. asset forfeiture and we went to jail for 20 gr. of marijuana that we could legally have. but our money we have to prove was not from selling pot. he should never been able to search our car which was also a rental car he impounded, this is the most humiliating thing ever happened and this was 20 min after we crossed the border back to our home in calif. the officer was rude and it seems to me they pullpeople over for forfeiture reasons more than real traffic violations. why not if they get to keep most assets they seize for their dept.
we recently had the same type of thing happen. only the off. said he smelled unburned marijuana, we showed him our state id cards and he still searched our vehicle without our consent. in the trunk he found cash we had won in nevada gambling. asset forfeiture and we went to jail for 20 gr. of marijuana that we could legally have. but our money we have to prove was not from selling pot. he should never been able to search our car which was also a rental car he impounded, this is the most humiliating thing ever happened and this was 20 min after we crossed the border back to our home in calif. the officer was rude and it seems to me they pullpeople over for forfeiture reasons more than real traffic violations. why not if they get to keep most assets they seize for their dept.
CdwJava
Moderator
You had a card in CA yet you were crossing back into CA after transporting marijuana from another state?
An argument could be made that you were involved in trafficking.
Your attorney can make a motion to suppress ... depending on the circumstances, it may work.
Know that it is not uncommon for people from out of state to establish residency in CA in order to obtain a doctor's recommendation for marijuana and a DHS card and then use that as a smokescreen to purchase marijuana at "dispensaries" in major metro areas and then transport the stuff across state lines. It is but one of many reasons why most of us are very skeptical of the medical need for marijuana.
mushrock58
New Member
the point is we were stopped for supposedly speeding, we were not and of course we smell like marijuana, the same as a person who smokes cigarettes, we showed him our cards so he would obey state laws and give us a speeding ticketand let us go.our only crime was having a large sum of money in our suitcase, and some empty seal ameal bags we had clothes and belongings in on our trip.we are grandparents now and our children all pitched in to give us a christmas vacation, it was the best vac. we had a great time, we were in susanville long enough to get gas and on 44 we got stopped 4 hrs from home they even took our change in our pockets. we are just begging to fight this and im hopeful the criminal charges will be dropped but asset forfeiture is a whole different matter.
mightymoose
Moderator
If the officer stopped you for any reason and could smell the marijuana, it was a green a light for a search of the vehicle even without your consent. Your marijuana cards to not prevent you from being searched... they only allow you a certain amount and you would be in violation if more than what you are allowed was found. The officer doesn't know if you are trafficking or not, and because he could smell the drug he could investigate.
That said- if the officer got into a suitcase that was in your trunk he will have to do more explaining to justify it, but it isn't necessarily wrong... but possibly walking the line.
A large amount of cash in the trunk with empty bags does seem very suspicious... I can't say I blame him for what he did. It sounds like something for a judge or jury to decide.
That said- if the officer got into a suitcase that was in your trunk he will have to do more explaining to justify it, but it isn't necessarily wrong... but possibly walking the line.
A large amount of cash in the trunk with empty bags does seem very suspicious... I can't say I blame him for what he did. It sounds like something for a judge or jury to decide.
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