Can Police Search Me if They Smell Marijuana?
With some exceptions, police may not search a suspect or his/her property solely because they smell marijuana.
Proposition 64, known as the Adult Use of Marijuana Act, was enacted November 9, 2016. It prohibits a search based on legal possession or use of marijuana.
In order to conduct a search, police must have reason to believe the marijuana possession or use is illegal or that the suspect is engaged in some other illegal activity (In Re D.W.).
What Can Police Do if They Smell Marijuana?
Police MAY investigate further based on the smell or issue a notice to appear in court. Below is a discussion of some scenarios where police can arrest a suspect when they smell marijuana.
Driving Under the Influence
Driving a vehicle while “under the influence” of marijuana is illegal under Vehicle Code Section 23152(f).
Police may arrest the driver if they have probable cause to believe the driver is under the influence of marijuana.
Illegal Marijuana Activity
Police may arrest a suspect if they have probable cause to believe the suspect is illegally using, transporting, cultivating, selling, possessing marijuana, or manufacturing concentrates. See Health & Safety Code Sections:
- 11362.4(c)/11362.3(a)(5) – Use of Marijuana;
- 11360 – Transportation;
- 11358, 11362.4(f)/11362.2(a) – Cultivation;
- 11359 – Sale;
- 11357 – Possession; and
- 11358, 11362.4(d)/11362.3(6) – Manufacturing concentrates.
Search Incident to Lawful Arrest (“Sila”)
Police may search a suspect who in the process of being arrested or has been placed under arrest.
Police may search a suspect and the suspect’s immediate area for weapons or evidence that can be concealed or destroyed (Chimel v. California).
Probable Cause
Probable cause means law enforcement is aware of facts and circumstances that would lead a reasonable person to believe that the person is guilty of a crime (Brinegar v. United States).
Probable Cause for Marijuana-related Crimes
Common facts and circumstances used by law enforcement to support probable cause include:
-
- Smoke or paraphernalia in car.
- Smell marijuana smoke on hands or breath.
- Strong smell of marijuana in vehicle.
- Appearance and actions of driver.
- Failed field sobriety test(s) (ok to refuse).
- Suspect confesses to illegal conduct.
- Pay/owe sheets, scales, large quantities of money.
- Driver is sole occupant and/or car full of luggage.
