Is Smell Still Sufficient for Probable Cause in Virginia?

August 24, 2015

The recent trend across the country to decriminalize, and in some states legalize marijuana, begs the question: Is smell of marijuana alone still sufficient to support probable cause to search?
Written By: Adam Carroll

As many criminal defense practitioners can attest, the typical fact pattern for a “routine” marijuana charge is your client being stopped by police for some minor traffic infraction and upon approaching the window of the car smells a distinct odor of marijuana coming from the vehicle.  Based on years of case law[1] and training, the officer proceeds to search the vehicle, typically without getting consent.  Upon finding a substance that tests positive for marijuana, the client is issued a summons and a notice that he can request chemical testing through the Department of Forensic Science.  Analyzing this case years ago, I did not think I could, in good faith, contest the reasonable suspicion or probable cause.  I would see if my client is a good fit for the first offender program, or alternatively try to work a deal that included the least fine possible.  Now however, there is a movement across the country to decriminalize[2], and in some cases, legalize[3] marijuana for recreational purposes.  The legalization of these substances have already had an effect on the search and seizure protocol in those states.  Because of the plain language of Virginia’s marijuana statute these “legalization arguments” and cases can be very persuasive in suppressing evidence in similar circumstances in this Commonwealth.

I had this identical fact pattern a few weeks ago in a General District Court where I routinely appear:  speeding, stop, smell, requested consent search, denied, forced search without consent.  The officers uncovered a non-distribution amount of marijuana that my client lawfully purchased for medicinal purposes in a state permitting not only medical marijuana, but recreational as well.  The marijuana was packaged in the containers from the foreign state dispensary, the smoking devices contained residue, but no marijuana was actively being burned.  My client even had in his possession his “Medical Registry Card” from the foreign state.

At the trial I moved to suppress the search for lack of probable cause because the officer could not, based on smell alone, particularize that my client was in unlawful possession of marijuana.  Virginia’s marijuana law (Va. Code Ann. § 18.2-250.1) provides, in pertinent part:

It is unlawful for any person knowingly or intentionally to possess marijuana unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except at authorized by the Drug Control Act (§ 54.1-3400 et seq.). Based on the plain language of this code section, there are two avenues for lawful possession of marijuana, therefore, not all marijuana possession is illegal in Virginia.  

To illustrate this argument, I discussed two recent cases decided in Massachusetts having similar facts. Commonwealth v. Crann[4] and Commonwealth v. Overmyer[5] were both decided by the Massachusetts Supreme Court on July 9, 2014. Both of these cases involved searches of automobiles based on the smell of marijuana as a basis for a warrantless search.  Both cases held the searches unreasonable because, under Massachusetts law, marijuana could be lawfully possessed.

In Crann, Boston police stopped Crann’s vehicle at a sobriety checkpoint.  The trooper smelled the odor of “unburnt marijuana emanating from the vehicle” and performed a search.  The Supreme Court held, in light of a prior ruling, that, due to the 2008 initiative of the Commonwealth to decriminalize marijuana, “the odor of…marijuana alone cannot reasonably provide suspicion of criminal activity,” nor can it give rise to probable cause to search a vehicle under the automobile exception. Going further, the Crann court held that without articulable facts supporting a belief that the occupant of the vehicle was in possession of a “criminal amount” of marijuana, the search is not justified.

In Overmyer, officers responded to a motor vehicle accident and smelled a very strong odor of unburnt marijuana near the location of one of the involved vehicles.  The officer asked Overmyer if there was marijuana in the vehicle and he acknowledged there was.  After retrieving one bag in the glove box, officers still smelled what they perceived to be “more” marijuana and went on a hunt to find the rest.  The officers found a distribution level amount and Overmyer was ultimately charged with possession with intent to distribute.  The trial court determined the odor “triggered suspicion” that there was more than an ounce in the car (which is a crime in Mass.) and denied defendant’s motion to suppress.  On review, the Commonwealth’s Supreme Court held that smell alone, is subjective, and not indicative of amount:  smell only points to “some” marijuana, not necessarily a criminal amount.

Using the same rationale in these cases, I argued, successfully, that the smell in my client’s car only pointed to the presence of some marijuana.  Under the law in Virginia, this marijuana could have been lawfully possessed pursuant to a valid prescription.  Because there were no articulable facts presented that established criminal possession, the court suppressed the evidence and convicted my client of a speeding ticket.

The implications of these arguments are applicable to a number of circumstances of smell giving rise to a search.  Given the increasing number of states that are decriminalizing and/or legalizing marijuana, development of these arguments and the impact on 4th Amendment jurisprudence is certain to change.  Based on the foregoing, it is arguable that, even in Virginia, smell of marijuana alone is no longer sufficient to justify a search.

[1] Bunch v. Commonwealth, 51 Va. App. 491, 658 S.E.2d 724, 2008 Va. App. LEXIS 169 (Va. Ct. App. 2008) citing, Hitchcock v. State, 118 S.W.3d 844, 850-51 (Tex. Crim. App. 2003) (finding the “odor of marijuana alone is sufficient to constitute probable cause to search a defendant’s person”); State v. Moore, 90 Ohio St. 3d 47, 2000 Ohio 10, 734 N.E.2d 804, 809 (Ohio 2000) (holding the “smell of marijuana” alone sufficient to establish probable cause); State v. Hernandez, 706 So. 2d 66, 67 (Fla. Dist. Ct. App. 1998) (finding probable cause to search a “member of the group from which the odor of marijuana emanated”); State v. Vanderveer, 285 N.J. Super. 475, 667 A.2d 382, 385 (N.J. Sup. Ct. 1995) (finding probable cause based upon “a strong odor of marijuana” coming from the suspect and a companion); State v. T.T., 594 So. 2d 839, 840 (Fla. Dist. Ct. App. 1992) (finding probable cause “based solely on the very strong smell of burned marijuana residue”); People v. Fitzpatrick, 3 Cal. App. 3d 824, 825-26, 84 Cal. Rptr. 78 (Cal. Ct. App. 1970) (finding probable cause where officer, upon smelling “the odor of burned marijuana” coming from a vehicle, asked the defendant to step out, and the “odor was most distinctive on the person of defendant”).
[2] Massachusetts in 2008 made it a civil penalty to possess one ounce or less of marijuana, but provides no form of criminal or civil punishment.  General Laws c. 94C, § 32L.
[3] http://www.governing.com/gov-data/state-marijuana-laws-map-medical-recreational.html
[4] 469 Mass. 24 (2014)
[5] 469 Mass. 16 (2014)