In the Age of Decriminalization, Is the Odor of Marijuana Alone Enough to Justify a Warrantless Search?

Abstract

The words “I smell the odor of marijuana” have historically granted police access to search persons and their vehicles without any further justification. However, with vastly differing marijuana and hemp laws quickly arising across America, courts have begun to disagree on how to approach search and seizure based on odor alone. An area of law that once seemed untouchable has now been challenged, creating a lack of uniformity across states and jurisdictions, and a need for resolution.

The Fourth Amendment warrant exception of the plain-smell doctrine has consistently been used to “rubber stamp” governmental intrusion into fundamental rights. The legalization and decriminalization of hemp and marijuana for medical and recreational use makes the application of the plain-smell doctrine inconsistent and inadequate, and often prejudicial. Additionally, police use boilerplate language to bypass procedural mechanisms set in place for the protection of the people. The Article offers the solution of an odor-plus standard via alternate routes: Supreme Court decision or Congressional intervention. Under such a standard, officers may not use the smell of marijuana alone as reason for probable cause to conduct a warrantless search, but must also meet at least one other delineated criterion.

Keywords: odor-plus standard, marijuana, search and seizure, plain-smell doctrine, odor of marijuana, legalization of marijuana, decriminalization of marijuana, medical marijuana, warrantless search

JEL Classification: K00, K1, K14, K10, K40, K42, K49, K41, K19, Q00, Q26, Z10, Z18, Z19, K30, K39