Did you know that if a police officer detects the smell of marijuana in your car during a traffic stop, he can search your car? So long as marijuana remains illegal in Wisconsin, police can search your car based on the smell alone. This post looks at car searches based on the smell of marijuana.
Marijuana Smell = Search of Vehicle
Ordinarily, police either need consent or a warrant to search your car. Police can also search portions of your car if you are arrested for a traffic offense while in your car. And the United States Supreme Court carved out another exception to the warrant requirement for cars. This exception permits police to search a car without a warrant if there is a reasonable belief that evidence of a crime will be found in the car. It is under this exception where police can search your car based on the smell of marijuana. That’s because possession of marijuana in Wisconsin is illegal. The logic is straightforward. If a cop smells marijuana, then there will be evidence of a crime (possession of marijuana) inside the vehicle.
Certainly there are problems with this premise. What if you weren’t smoking in the car but your friend was earlier in the day? What about the differences between the smell of fresh marijuana and burnt (smoked) marijuana? It doesn’t matter. In Wisconsin, if a cop smells the odor of marijuana, he can search your car for the source of the odor.
But Marijuana is Legal in 33 States
In states outside of Wisconsin, it is no longer a black and white issue. That’s because the smell of marijuana is no longer per se evidence of a crime. And judges around the country where marijuana is legal are recognizing it. In Pennsylvania, a judge suppressed evidence of a vehicle search where the front passenger had a medical marijuana card. The judge said that once the passenger displayed the medical marijuana card, it was no longer reasonable that evidence of a crime would be found within the car.
Massachusetts and Vermont have had similar rulings to the Pennsylvania court. And Colorado, courts went so far as to determine that a drug detection dog’s alert is insufficient to justify a search of the vehicle.
Still, there are other factors which may justify a search based on the smell of marijuana. For example, if the smell is overpowering. A very strong smell can indicate the car contains a quantity of marijuana in excess of what is legal to possess. Another example is if the driver shows signs of impairment. Driving while high is illegal in all 50 states. Therefore, police can still investigate if they believe you are impaired.
Packers Star Cited for Marijuana Possession
Packers defensive star Za’Darius Smith was cited for possession of marijuana stemming from an incident in late September. Smith was pulled over in Racine County for speeding while on his way back from Chicago. When the officer got to the car, he could smell the odor of marijuana. This gave the officer probable cause to search the vehicle where marijuana was ultimately located. Smith admitted he smoked marijuana earlier in the day in Chicago. Because he had no prior drug offenses, he was issued a citation for the possession of marijuana.
This case highlights what is sure to become problematic for people traveling from Illinois to Wisconsin. Possession of marijuana will become legal in Illinois on January 1, 2020. However, marijuana possession remains illegal in Wisconsin. Therefore, someone who legally smokes marijuana in Illinois can still be pulled over and subjected to a vehicle search in Wisconsin.
Challenging a Vehicle Search
The attorneys at Meyer Van Severen, S.C. are experienced in challenging searches of vehicles. When appropriate, we will file a motion to suppress evidence recovered after an illegal vehicle search. The smell of marijuana is often used by police as a way to search your car when they don’t have any other valid reason. If you believe that you were the subject of an illegal vehicle search, call one of our criminal defense attorneys today.