What’s That Smell?: Does the Odor of Marijuana Give Police Probable Cause to Search the Entire Vehicle?

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John Bernans, Associate Member, University of Cincinnati Law Review

The Fourth Amendment states, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”[1] The doctrines of the Fourth and Fifth Amendments apply to all invasions by the government and its employees into the sanctity of a man’s home and the privacies of life.[2] When a government actor decides that they want to search an individual or an individual’s possessions, they are required to have probable cause.[3] Throughout the Supreme Court’s jurisprudence, the searching of one’s automobile has been a highly debated issue. The Supreme Court has held that warrantless searches “are per se unreasonable under the Fourth Amendment —subject only to a few specifically established and well-delineated exceptions.”[4] One exception to the warrant requirement concerns automobiles because of their inherent mobility and the risk that contraband inside the vehicle could disappear while officers obtain a search warrant.[5] In Carroll v. U.S., the Supreme Court took the automobile exception a step further when they held that a warrantless search of an automobile stopped by police who had probable cause to believe the vehicle contained contraband was not unreasonable within the meaning of the Fourth Amendment.[6] However, the Supreme Court did not explicitly address the scope of the search that is permissible when probable cause has been established.[7] The scope of the search and where a police officer may look, based on probable cause, is the core issue in United States v. Pankey.[8] More specifically, the questioned posed to the Fourth Circuit in Pankey was whether or not probable cause to search has been established when an officer smells the odor of marijuana and if so, where the officer may search.[9] This exact issue is currently a split among the circuits.[10] The Tenth Circuit held that the mere odor of marijuana, without more, does not give a police officer probable cause to search the entire car.[11] The Fifth and Eighth Circuits, on the other hand, have held that the odor of marijuana does in fact establish probable cause to search the entire automobile.[12] The analysis of the Fifth and Eighth Circuits is correct. Due to the numerous places where one could hide drugs and the mobility of an automobile, the odor of marijuana does give an officer probable cause to search the entire vehicle.

United States v. Ross – The Precedent

The scope of a warrantless search of an automobile is not defined by the nature of the container in which the contraband is hidden, but rather, the object of the search and the places in which there is probable cause to believe that it may be found.[13] The case of United States v. Ross is key precedent for the issue of whether the odor of marijuana gives law enforcement probable to search because it holds that the police are not limited to the nature of the container but the piece of contraband for which they have probable cause. On the evening of November 27, 1978 an informant who had previously proved to be reliable to police informed police that an individual known as “Bandit” was selling narcotics kept in the trunk of his car.[14] With this knowledge, police went to the described location of “Bandit,” whose real name was Albert Ross.[15] Upon arriving at the scene, the officers found the described car that the informant spoke about and they stopped the vehicle.[16] The police told Ross to get out of the vehicle and while searching Ross’s car, they found a bullet on the front seat and a pistol in the glove compartment.[17] Ross then was arrested and handcuffed.[18] Detective Cassidy took Ross’ keys and opened the trunk, where he found a closed brown paper bag that contained cocaine in small plastic bags.[19] The car was then taken back to the police station and the search eventually turned up drugs and three thousand dollars.[20]

In contraband cases, a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.[21] The Supreme Court of the United States reasoned that contraband goods are rarely strewn across the trunk or floor of a car. By their very nature, such goods must be withheld from public view and can rarely  be placed in an automobile unless they are enclosed within some form of container.[22] The court also held a lawful search of a fixed premise, in this case, a car, generally extends to the entire area in which the object of the search may be found.[23] Most importantly, the court stated that the search is not limited by the possibility that separate acts of entry or opening may be required to complete the search.[24] In the end, Supreme Court held the scope of a warrantless search of an automobile is not defined by the nature of the container in which the contraband is hidden, but in the nature of the contraband itself.[25]

Winters and McSween – The Decisions of the Fifth and Eighth Circuits

During an investigative stop, an officer can take steps to protect his personal safety and to maintain the status quo.[26] In the case of Winters, the Eighth Circuit held that the search of the entire vehicle was proper and that the officer did have probable cause when he smelled the odor of marijuana.[27] In the case of Winters, Officer Rick Busch observed the defendant driving eighty-six miles per hour on an icy road in a fifty-five mile per hour speed zone.[28] Trooper Busch turned on his flashing lights and pursued the defendant.[29] The defendant kept going for several hundred yards but eventually the defendant turned into a farmyard driveway, drove his car into a snow bank, got out of the car, and started walking away from his car and toward the farmhouse.[30] When the defendant stopped, Trooper Busch asked for the defendant’s license, registration, and proof of insurance.[31] Trooper Busch permitted the defendant to go back to his car to search for his vehicle registration and certificate of insurance.[32] The defendant went back to his car and searched both the driver’s side and passenger’s side of the vehicle for his documentation.[33] At the time, the defendant left the driver’s side door open and the Officer cautioned the defendant about reaching under the seats.[34] It is at this point that Officer Busch placed his head in the car and smelled raw marijuana.[35] The defendant was then arrested and the Officer proceeded to search his vehicle.[36] During the search, law enforcement eventually found marijuana residue in the defendant’s attaché case along with a large quantity of amphetamine, an unknown white powdery substance, marijuana, and two loaded handguns in the trunk of the defendant’s car.[37]

At trial, the defendant moved to have all of the evidence found in the search to be suppressed.[38] However, the trial court held that the officer had a legitimate concern for his safety and that the smell of raw marijuana created the necessary probable cause to search the defendant’s car and its containers.[39] The Eighth Circuit affirmed the denied suppression motion because the trooper had probable cause to stop the defendant due to the defendant’s speeding.[40] Further, once the trooper smelled marijuana inside the vehicle, the officer had probable cause to search the vehicle anywhere in which marijuana could be hidden.[41] Because of the nature of marijuana and the numerous places it can be hidden inside a vehicle, the probable cause created by the odor covered the entire vehicle.[42]

Along with the Eighth Circuit, the Fifth Circuit also held that the odor of marijuana was enough to give law enforcement probable cause to search a vehicle.[43] The Fifth Circuit case of United States v. McSween is very similar to that of Winters in its facts and its holding.[44] The defendant in McSween was pulled over for going eighty-seven miles per hour in a sixty-five miles per hour speed zone.[45] When the officer ran the defendant through his computer check, he saw that the defendant already had four prior arrests for drug related charges.[46] After the officer informed the defendant that he viewed his record, he asked the defendant if he had any objection to searching his car.[47] The defendant consented and while searching the passenger area, Price noticed the smell of burnt marijuana, which he at first suspected was emanating from the ashtray.[48] Finding no marijuana in the ashtray or passenger area, the officer opened the hood and noticed a red rag sticking out of a hole in the car’s firewall.[49] The officer removed the rag and found a small plastic baggie than contained marijuana.[50] The officer then arrested the defendant and at trial, the defendant moved to have the evidence found in his car suppressed.[51]

The officer in the McSween case had both probable cause and consent to search any area in which marijuana could be found.[52] The Fifth Circuit held that the Fourth Amendment permits warrantless searches of automobiles if the officers have probable cause to believe that the vehicle contains contraband or other evidence of a crime.[53] The Fifth Circuit also held whether an officer has probable cause to search a vehicle depends on the totality of the circumstances viewed “in light of the observations, knowledge, and training of the law enforcement officers involved in the warrantless search.”[54] The officer testified that he based this conclusion on his twenty-two years of experience and training in the detection of marijuana by its odor.[55] He further testified that the smell appeared to be coming from the ashtray, but he discovered nothing there or anywhere else inside the vehicle’s passenger compartment.[56] He then decided to look under the hood.[57] The Fifth Circuit then quoted Ross in holding that in a case like this, the detection of the odor of marijuana justifies “a search of the entire vehicle.”[58] In the end, the Fifth Circuit held that if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of search.[59]

Loucks – The Decision of the Tenth Circuit

The mere smell of marijuana, without something more, is not probable cause for law enforcement to search the entire vehicle.[60] This holding by the Tenth Circuit Court of Appeals is the other side of the current split between the circuits. In the case of Loucks, the defendant was pulled over for speeding on a Wyoming interstate.[61] Immediately after the stopping, Loucks got out of his vehicle and walked towards the officer’s patrol car.[62] Loucks was asked by the officer to take a seat in the patrol car while the officer wrote a traffic ticket.[63] It was in this setting that the officer noticed a strong odor of marijuana on Loucks; “reeking” being the word used by the officer.[64] As they were seated in the patrol car, the officer asked Loucks if he had been smoking marijuana, and Loucks denied it.[65] The officer asked Loucks to empty his pockets, which Loucks did, and the officer then checked Loucks for weapons.[66] The officer next walked to Loucks’ car and opened the door on the driver’s side.[67] Leaning into the car, the officer smelled what he thought was still-burning marijuana.[68] The officer then proceeded to search the interior of the vehicle, which yielded a small wooden box containing what appeared to be marijuana, a few marijuana cigarette butts from the car’s ashtray and a small brown paper bag, which also contained marijuana.[69] The officer then took the keys and opened the trunk of the car where he found a twenty-five pound bag of marijuana.[70]

The mere smell of marijuana, without something more, is not sufficient to establish probable cause to search the entire vehicle.[71] In the present case, the defendant conceded that the officer had probable cause to make a warrantless search of the passenger compartment of his vehicle, but argued that there was no such probable cause to search the trunk.[72] The Tenth Circuit agreed with him in that it held the search of trunk was improper if solely based on the odor of marijuana.[73] The Tenth Circuit differentiated this case from Ross. However, the Court does leave the door open to odor establishing the probable cause needed to search the entire vehicle.[74] In the eyes of the Tenth Circuit, the difference between Ross and this case was that the odor of marijuana came from the defendant himself when he was sitting in the police car.[75] This gave the officer probable cause to search only the passenger compartment and not the whole vehicle.[76] It was only when the officer found the small box of marijuana did he then have the necessary probable cause to search the entire vehicle.[77] If the officer would have found nothing in the passenger compartment, he could not have searched the remaining areas of the car.[78] Holding that while mere odor of burnt marijuana was insufficient to give rise to probable cause to search vehicle’s trunk, odor of burnt marijuana on defendant’s person plus discovery of marijuana in passenger compartment was sufficient to establish probable cause for the entire vehicle.[79]

The Mere Smell of Marijuana Grants Police Probable Cause to Search the Entire Car

            The Supreme Court should rule that the odor of marijuana gives a police officer probable cause to search the entire vehicle. As the Court stated in Ross, the scope of a warrantless search of an automobile should not be defined by the container in which it was found, but the contraband itself. The reason for such a rule is that contraband is rarely in plain view and is often hidden or enclosed in some sort of container. When an officer smells marijuana, this odor establishes probable cause that there is marijuana in the vehicle. What is important about marijuana, specifically, is that it is so small that it could reasonably be hidden anywhere. Marijuana, as with most drugs, is distinguishable from the other types of contraband. With a firearm or larger stolen good, if an officer has probable cause to believe that item is in the car, that item could only reasonably be in a few places. Firearms and larger items could not be hidden in small containers or, for example, an ashtray of a car. For this reason, probable cause for such larger items would not allow law enforcement to search the entire car. Marijuana, on the other hand, is much, much smaller and can be compacted into almost any area of the vehicle. As we saw in the McSween case, upon smelling the odor of burnt marijuana, the officer found the drugs stuffed in a hollow tube under the hood of the vehicle. Additionally, marijuana can be hidden in almost any sized container. In McSween the drugs were hidden under the hood, in Winters the drugs were hidden in a small case in the passenger compartment, and in Loucks a large quantity of marijuana was found in the trunk. This proves it is reasonable to believe that marijuana can be found from bumper to bumper.

Due to the mobility of an automobile, if a police officer smells the odor of marijuana, a warrantless search of the entire car is not unreasonable. Cars are inherently mobile and the risk that contraband inside the vehicle could disappear is very likely. If police officers are forced to obtain a search warrant or delay a search, they run the risk of the marijuana disappearing. An added risk of marijuana disappearing if an initial search is not allowed is the fact that marijuana can easily be packaged, re-concealed, and removed from the vehicle. Because of this, the odor of marijuana in the car should establish probable cause to search the entire vehicle. This rule would best assist law enforcement in seizing illegal contraband.

Conclusion

The odor of marijuana establishes probable cause for law enforcement to search the entire vehicle because of the characteristics of marijuana and the mobility of automobiles. Marijuana can be hidden anywhere in the vehicle – from the smallest compartment to the largest case in the trunk of a car. If officers smell marijuana and are forced to let the car go to get a warrant, they will run the risk of losing whatever contraband is hidden in the vehicle. The Fifth and Eighth Circuits are correct in their reasoning that the odor of marijuana in a vehicle is enough probable cause to search the entire vehicle. The constitutionality of a search should not be determined by the actual location of contraband, but by facts indicating the presence of contraband generally.

[1] U.S. Const. Amend. IV

[2] Mapp v. Ohio, 367 U.S. 643, 646 (1961)

[3] See generally Illinois v. Gates, 462 U.S. 213 (1983)

[4] California v. Acevedo, 500 U.S. 565, 580 (1991)

[5] California v. Carney, 471 U.S. 386, 390-391 (1985)

[6] United States v. Ross, 456 U.S. 798, 799 (1982)

[7] Id.

[8] United States v. Pankey, No. 17-4325, 2018 BL 44823 (4th Cir. Feb. 09, 2018)

[9] Id. at 617

[10] Id.

[11] United States v. Loucks, 806 F.2d 208, 211 (10th Cir. 1986)

[12] United States v. Winters, 221 F.3d 1039 (8th Cir. 2000) and United States v. McSween, 53 F.3d 684 (5th Cir. 1995)

[13] Ross, 456 U.S. at 824

[14] Id. at 800

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id. at 809-810

[22] Id. at 820

[23] Id. at 821

[24] Id.

[25] Id. at 824

[26] United States v. Winters, 221 F.3d 1039, 1041-42 (8th Cir. 2000)

[27] Id. at 1040

[28] Winters, 221 F.3d at 1040

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id. at 1041

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] See Generally United States v. McSween, 53 F.3d 684 (5th Cir. 1995)

[44] United States v. McSween, 53 F.3d 684, 686 (5th Cir. 1995)

[45] Id. at 685

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Id.

[51] McSween, 53 F.3d. at 686

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] Id.

[57] Id.

[58] Ross, 882 F.2d at 149

[59] McSween, 53 F.3d at 687

[60] See Generally United States v. Loucks, 806 F.2d 208 (10th Cir. 1986)

[61] Loucks, 806 F.2d at 208.

[62] Id.

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67] Id.

[68] Id.

[69] Id.

[70] Id.

[71] Id. at 211

[72] Id. at 209

[73] Id.

[74] Id. at 210

[75] Id.

[76] Id.

[77] Id.

[78] Id.

[79] Id. at 211