The Implications of Legalized Marijuana on Establishing Probable Cause for a Warrantless Search

A police officer pulled over a speeding automobile. As the officer approached the vehicle, the driver lowered her window, causing the unique odor of marijuana to escape into the air.[1] This smell immediately alerted the officer to the existence of a controlled substance and established probable cause to search the operator and car.[2] Not so fast! Sniff and search is no longer an automatic justification for law enforcement to conduct a warrantless search in those jurisdictions that have legalized or decriminalized cannabis.[3] The Supreme Court has long recognized the “automobile exception” to the Fourth Amendment’s prohibition against unlawful search and seizures.[4] This precedent has provided the police with the power to perform a warrantless search if a reasonable suspicion exits that the vehicle is being employed to hide contraband or evidence of a crime.[5] The police have used this exception for many years to perform car searches premised upon the unique smell of marijuana.[6] However, recent case law suggests that they may no longer solely rely upon the odor of marijuana to support a search in some jurisdictions.[7] Medical marijuana and the approved recreational use of the drug, or decriminalization, which imposes civil but not criminal penalties for some levels of marijuana possession, are forcing law enforcement to reexamine their operating procedures involving the searching of a motor vehicle, or person, without a warrant. Marijuana has a complicated legal narrative in the United States. While it gains increased acceptance in this country, state lawmakers and the judiciary are confronted with ongoing and novel issues about the drug’s legality and control.[8] This article will explore one of the current controversies involving marijuana: law enforcement’s reliance on smelling or seeing cannabis as establishing probable cause for suspicion of criminal activity. This is known as the “Plain Smell” Doctrine.[9] Many courts have allowed warrantless searches premised upon the smell of the drug. However, if the substance is legal or decriminalized in a specific jurisdiction, should its odor still permit a warrantless search by law enforcement?[10] That question is the focus of this article. [1]. Paul Stein, Court Rules Marijuana Odor No Longer Probable Cause to Search, Stein Sperling (Jan. 22, 2019), https://steinsperling.com/court-rules-marijuana-odor-no-longer-proba ble-cause-to-search/. [2]. Id. [3]. Michael Rubinkam, In Era of Legal Pot, Can Police Search Cars Based on Odor?, AP News (Sept. 13, 2019), https://apnews.com/article/0ba2cf617a414174b566af68262ef937. [4]. Id. [5]. Id. [6]. Id. [7]. Stein, supra note 1. [8]. Cece White, The Sativas and Indicas of Proof: Why the Smell of Marijuana Should Not Establish Probable Cause for a Warrantless Vehicle Search in Illinois, 53 UIC J. Marshall L. Rev. 187, 188 (2020). [9]. Id. at 188. [10]. Id