The Odor of Marijuana and Warrantless Searches of Automobiles: Where Do We Stand?

In a recent decision out of the Ninth Circuit Court of Appeals, United States v. Gray, the odor of marijuana in a motor vehicle could provide the probable cause necessary for a warrantless search in a state that has legalized adult use of marijuana. More states across the Country are leaning toward this type of approach in determining the reasonableness of similar searches.  Michigan, which is now a recreational state, will most likely be looking to other states that have recreational laws for guidance on how to decide these types of issues.

In Gray, two occupants of a vehicle were traveling on a downtown street without any lights on. During their progression, they were stopped by county sheriff’s officers. Upon questioning of the occupants, the occupants denied smoking marijuana in the car but the officers believed they were “smoking buds” while the vehicle was operable.  In Nevada it is illegal to, “smoke or otherwise consume marijuana in a public place,… or in a moving vehicle.” Nev. Rev. Stat. § 453D.400(2). The officers then called in a drug detection dog to search the vehicle. The drug detection dog alerted to the vehicle and a search was conducted, finding a firearm in the backpack of one of the occupants. The trial court (a Nevada court) never made the distinction regarding the difference between the odor of burnt or unburnt marijuana thus it appears that the appellate court was left a set of facts pertaining simply to the smell of marijuana.

What does this mean for us here in Michigan? Our law allows for the possession of 2.5 oz. of flower marijuana and who are 21 years or older. “I believe that the case may have had a different outcome had the trail court made a distinction regarding whether or not the odor was of burnt or unburnt marijuana.  Had the smell been of unburnt or fresh marijuana the evidence may of very well been suppressed and the charges dismissed,” says attorney Joshua Covert of the Michigan Cannabis Lawyers.  So long as there isn’t the smell of burning or burnt marijuana in a moving vehicle or while operating, there shouldn’t be probable cause to warrant a search. However, it is important to stay in touch with the changing laws and regulations regarding Fourth Amendment searches and seizures. At the Michigan Cannabis Lawyers, we strive to stay ahead of the pitch and always ready to face a challenge.