Should the Smell of Weed be Probable Cause for Police to Search you?

By Kaitlyn M.
A Miami- Dade man is fighting possession charges due to what he says is an unlawful search and seizure. This brings up the question if law enforcement should be allowed to use the smell of weed as probable cause?

Many people have experienced a cop pulling them over while driving. Whether it is for speeding, not stopping, or even not using a blinker, it happens to the best of us. But what happens when an officer states they need to search your vehicle because they smell marijuana?

For decades police officers have used the smell of marijuana as probable cause which allows them to search you and your vehicle. In many cases, there is no weed and it is used to arrest you on other charges. Since marijuana is becoming legal in many states, this has become a grey area.

In Florida, this has become a major issue, especially after medical marijuana was legalized. Should the smell of weed be considered probable cause even though medical marijuana and non-THC flowers are legal? One South Florida man thinks this needs to change and is fighting the system.

Man Fighting Possession Charges with Unlawful Search Claims

Victor Chavez Arrest

Victor Chavez, a 24-year-old man from Southwest Miami-Dade was arrested after an incident where his pickup truck was obstructing a roadway according to a police officer from the area. Half an hour later, two officers saw the same truck on the opposite side of the road with Chavez inside and they stated he “began to fidget, put his head down, and tried to drive away”. Miami-Dade police officers Jacqueline Diaz and Christine Marte stated they “could smell a strong odor of marijuana coming from the truck.”

The officers ordered Chavez to exit the vehicle and they found a bag of cocaine in his pocket and an eight-gallon bag of marijuana inside of a backpack. Chavez is charged with possession of cannabis with intent to sell or deliver, and possession of cannabis over 20 grams. He is also charged with possession of cocaine.

But Chavez and his lawyer, Assistant Miami-Dade Public Defender Fan Li are fighting the charges, claiming that the officers violated his constitutional right against an unlawful search and seizure. This is based on the fact that they were legally allowed to search his car once they smelled marijuana. But considering that CBD strains smell exactly the same, this should not be considered probable cause anymore.

Public Defender Fan Li’s motion to the court states, “The legalization of marijuana for a rapidly growing number of Floridians and businesses means that marijuana odor, in and of itself, is no longer an indication of criminality in Florida.”

Officers Unlawful Search
Photo Credit

It is an interesting case because Chavez is guilty of the charges placed upon him but if his claims hold up in court, he could be let go on all charges. But according to Miami-Dade prosecutor Jessica Underwood who responded to Li’s motion, these claims will not hold up in court because you can still not use marijuana in a car. Underwood stated, “Marijuana possession and use in public and vehicles has not been decriminalized in Florida, therefore the odor of marijuana remains evidence of a crime and it gives probable cause to conduct a search.”

This has also rung true in multiple states where people have attempted to fight cases with similar charges. Arizona deemed that if an officer smells marijuana, it is probable cause to search a vehicle. But there are many cases where the officer falsely claims they smell marijuana to obtain a search and seizure of a vehicle.

Thoughts from the Other Side

Last year, Mel Magazine spoke to Barry Cooper, a former DEA agent and a legal consultant in drug-offense cases. However, he now runs an organization that spreads the truth on the war on drugs from someone who's been on the other side. He said that the only way to gain a search and seizure was with help from a K-9 unit, an informant, or the officer using their senses to discover something.

Berry Cooper
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Cooper said,

At least speaking for myself, I alleged to smell marijuana to obtain probable cause many, many times. Essentially, if someone refused to consent to me searching their car, I’d just tell them I smelled marijuana so I could do it anyway. As a top law enforcement agent in the U.S., I knew a judge would believe me over the “bad guy” every time, so I could get away with lying. I usually didn’t have to lie about it though, because I loved making my dog “false alert” instead, using commands to excite the dog in order to get them to communicate a response, even when narcotics hadn’t been detected. I did a reverse version of this a lot, too: I’d search a car under weak legal reasons and discover say, 800 pounds of marijuana; in my report about that discovery, I’d say that I’d smelled marijuana before searching the car, just to ensure I’d established solid probable cause, even though I didn’t actually have probable cause at the time of my search.

This is the dangerous truth that has been ruining peoples lives for years. One could argue that the only reason these people are being arrested is that the officers found something to charge them with. But regardless of that, the officers used unlawful tactics that should not be allowed seeing as they could easily turn an innocent person into a prisoner.

Chavez’s case is still being worked out, but my guess is he will lose due to the fact that he had illegal marijuana and cocaine on him. Regardless of this, it needs to become illegal for an officer to say the smelled marijuana to search the vehicle to find other evidence. Officers should not be above the law and held accountable for false information just like the rest of us.

Citations

1.David Ovalle Medical marijuana is legal. Can Florida cops still search your car if they smell pot?. Retrieved March 04, 2019 from https://www.miamiherald.com/news/local/crime/article226600774.html

2.Michael Harwin U.S. Supreme Court: Evidence Obtained in Unlawful Search and Seizure Can Now Be Admitted as Valid Evidence. Retrieved March 04, 2019 from https://www.michaelharwinlaw.com/usscevidence-obtained-unlawful-search-seizure-can-now-admitted-valid-evidence/

3.Tierney Finster Will the Weed-As-Probable-Cause Loophole Finally Be Closed with Legalization?. Retrieved March 04, 2019 from https://melmagazine.com/en-us/story/will-the-weed-as-probable-cause-loophole-finally-be-closed-with-legalization

4. never get busted and how to pass a drug test. Retrieved March 04, 2019 from https://nevergetbusted.com/

About the author: Kaitlyn M.

Kaitlyn is one of our regular contributors to cover Products and Lifestyle. She's living in the palmy Florida.