Can the Odor of Marijuana Justify a Police Search? It Depends on the State

On Behalf of | Jun 27, 2023 | Criminal Defense, Drug Charges, Felonies |

Wisconsin Court Rules Marijuana Scent Alone Warrants Police Search

Recently the Wisconsin Supreme Court narrowly ruled that police officers were justified in conducting a search of a vehicle based on the purported smell of marijuana, overturning a lower courts ruling. In 2019, the defendant was pulled over for speeding, but officers conducted a search of the vehicle because they believed the rental car he was driving smelled like marijuana, even though the defendant claimed any smell was from a legal CBD vaping device.  In seeking to suppress or throw out the evidence later found, he argued that the odor of legal CBD is indistinguishable from marijuana and also that the officers did not allege that the defendant himself smelled like marijuana. Officers recovered cocaine and fentanyl on his person during the search. Lower courts ruled that the search was illegal, which the dissenting opinion in the Wisconsin Supreme Court agreed, arguing that the courts need to review their previous ruling in light of legalization of substances that smell like marijuana. But the majority ruled that the smell of marijuana, along with the fact that the defendant was alone in the car, justified the police officers’ search. It is worth noting that marijuana is not legal in Wisconsin for recreational or medicinal use, which makes the issue much less clear than in states in which marijuana has been legalized.

Illinois Senate Passes Bill That Would Prevent Search of Vehicle Based on Smell of Marijuana

In April, the Illinois State Senate passed a bill that would prevent the smell of marijuana from being used as probable cause to search a vehicle or its passengers. The bill was in response to a court ruling that justified a police search of a vehicle based on the smell of marijuana, despite marijuana being recreationally legal in Illinois, because the current law requires marijuana to be transported in odor-proof containers. While keeping impaired driving standards in place, the bill explicitly prohibits searches of vehicles based on the “odor of burnt or raw cannabis” alone. The current law in Illinois has led to some contradicting legal rulings surrounding the smell of cannabis and police searches, with some instances in which the courts have ruled the police are not justified in searching a vehicle, often being differentiated on the narrow or nuanced facts in the respective cases. The bill, if signed into law, would make it clearer to Illinois residents and police officers when a search of an individual or their vehicle is justified and when it exceeds law enforcement’s authority. This law has the potential to radically change how routine police work is conducted and have wide-ranging implications in the investigation and prosecution of criminal cases.

If you have been arrested after police officers have claimed to smell burnt, fresh or raw marijuana (cannabis), contact an experienced criminal defense lawyer with a demonstrated track record of suppressing or throwing out evidence based on violations of your constitutional rights.


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