A police officer may conduct a warrantless search of a vehicle if it is readily mobile and there is probable cause to believe that it contains contraband.[1] For years the strong odor of marijuana emanating from a car has established probable cause to search the car and its occupants.[2]
Texas legalized the cultivation of industrial hemp in 2019, which smells exactly like illegal marijuana when in plant form and when smoked.
There are courts that continue to uphold warrantless searches based on the smell of marijuana.
Courts in decriminalized jurisdictions that continue to find the smell of marijuana sufficient to establish probable cause, despite decriminalization, have focused on the exact meaning of “decriminalizing,” instead of “legalizing.” For example, in the state of Maryland, possession of less than 10 grams of marijuana is defined as a civil offense. Mere presence of marijuana warrants further investigation by the police to determine exactly what amount of marijuana is present. Even though the driver may not possess the criminal amount of marijuana, the smell still makes it more likely that he or she did possess the criminal amount of marijuana.
Therefore, courts in some legalized and decriminalized jurisdictions nonetheless hold that the smell does establish sufficient probable cause in support of a vehicle search.
In contrast, the Supreme Court of Colorado recently held that because a drug-sniffing dog’s alert may signal only lawful activity, “namely the legal possession of up to one ounce of marijuana,” officers must have probable cause based on more than smell to believe the vehicle “contains drugs in violation of state law” before deploying the dog.[3]
Texas has yet to litigate this issue since the Hemp Bill was enacted. If your car is searched because of the odor of what smells like marijuana, call The Greening Law Group for a case evaluation.
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