One of the major issues in America right now is the legalization of recreational marijuana. Marijuana’s status as a legal drug varies widely depending on which state you’re in. As the battle for federal legalization of marijuana continues, it has become more important than ever to know your rights in those states where legalization in the near future is unlikely. States like Indiana.
Currently, possession of marijuana in Indiana is a crime ranging from a Class B Misdemeanor up to a Level 6 Felony depending on certain circumstances, such as weight and past convictions. This means that having marijuana in Indiana (even marijuana purchased legally in other states) can potentially carry years of jail time and thousands of dollars in fines. To further complicate this is the legal concept of “plain smell.”
A common misconception about searches and seizures is that police cannot ever search your vehicle without a warrant. While this is true in many cases, it isn’t true in all. There are exceptions to the warrant requirement which allow officers to conduct searches without applying for warrants. One of these exceptions is called “plain smell.” In Indiana, the “plain smell” exception allows officers to search a vehicle or person if they detect the odor of marijuana or other contraband. Generally, the odor of burnt or raw marijuana, when detected by a trained officer, is sufficient to establish probable cause for a search.
The “plain smell” exception is not without limits. For example, the officer must be lawfully present in the location where they detect the odor (such as a traffic stop), and the odor must be distinctive enough to suggest that a crime is taking place. In general, this is an easy burden to meet. Oftentimes, officers will write in their police reports that they “smelled what they recognized through their training and experience as the odor of (raw or burnt) marijuana.” Additionally, the officer must have probable cause to believe that the odor is evidence of a crime (such as smoking marijuana in a state where it is illegal).
The problem with the “plain smell” exception is the nature of the odor of marijuana. The majority of adults are at least somewhat familiar with the unique smell of marijuana. In addition, the smell is one that can linger; getting into clothing and car upholstery. Officers might smell the odor of marijuana emanating from a car from an incident the day before or when someone else was using the car. An officer need only testify that the odor was strong and they recognized it based on their training and experience to justify the resulting search of the vehicle.
As marijuana continues to gain mainstream popularity, you may want to enjoy it in a state where it is legal. However, you should avoid smoking marijuana in your car. The lingering smell left behind from smoking marijuana (even if it was done legally in another state) can be enough to allow officers to go through your car without a warrant. If you are a defendant in a case where the “plain smell” exception was used to conduct a search and you believe your rights were violated, you may be able to challenge the search. For any further questions, please contact the Law Offices of Hodge, Roth, & Washington to schedule a free consultation.
