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The “Smell of Marijuana” and Probable Cause

In an automobile the smell of marijuana alone is enough to give an officer probable cause to search. The Supreme Court has long held officers can use trickery and deceit to catch law-breakers. Unfortunately it has now became commonplace for many officers to routinely say or imply they smell marijuana even though they do not. What they are doing is gauging the driver’s response and reaction when they say they do. If their claim is not met with a rapid and firm rejection to their claim THEN they assume they’re onto something and an illegal search ensues.

The problem is people are afraid to argue with an officer. Others try to explain what they think the officer smells and just solidify their probable cause. “Yea, we smoked in there earlier” is not a good thing to say! Nor is admitting to having something either. Not only will these responses get them in the car, but they also provide the state with required evidence of KNOWLEDGE that the contraband was there to sustain a conviction at trial. (Just because someone is in close proximity to contraband does not make them legally guilty of possession. Someone else could have easily left that there!) When they start that “I smell” business people need to challenge that claim with a flat and unequivocal rejection of that claim. Even if they later find something they cannot say you were being deceptive if your response was based off what you didn’t know. Remember, the entire encounter is being filmed!

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