Ever since the passage of Proposition 64 and the Medicinal and Adult-Use Cannabis Regulation and Safety Act, consumers can legally grow, possess, and use cannabis in California for non-medicinal purposes—but what does this mean for a cop's ability to search your person, residence, or vehicle based on the odor of cannabis alone?
It used to be that law enforcement could use an officer's mere subjective belief that they smelled cannabis in order to justify a warrantless search based off probable cause. Now? Not so much.
In a Residence
Adults 21 years of age or older are able to possess up to one ounce of marijuana and up to six plants in their home. Since cops cannot differentiate between the smell of, for example, one (legal) ounce and one (illegal) pound, or between the smell of six (legal) plants and sixteen (illegal) plants, law enforcement cannot search your residence based on the smell of cannabis alone.
Instead, officers have to be able to point to “specific and articulable” facts that give rise to a reasonable suspicion of criminal activity in your home—that is, there must be other factors present besides just odor alone to show probable cause that a person possesses or is growing illegal amounts of cannabis, and therefore that a warrantless search of a residence is justified. Examples of these other factors can include evidence of illegal sales, or unusually high utility bills that suggest a larger-scale grow is occurring.
Bottom line: unless the smell is overwhelming, cops cannot rely on just the “plain smell” of cannabis to conduct probable cause searches in homes and apartments.
In Public or Commercial Spaces
Just as alcohol consumption is not allowed in most public spaces, smoking cannabis in public is likewise illegal (unless a local jurisdiction permits cannabis consumption on the property of a licensed commercial premise). Toking up in a public place is a violation of California's public consumption laws and an infraction punishable by a $100 fine.
Moreover, using cannabis products is also prohibited within 1,000 feet of a school, day care center, or youth center while children are present (unless you are in a private residence and the smell of marijuana is not detectable by others on the grounds of the school, day care center, or youth center). Cannabis also cannot be smoked in places where state law already prohibits public smoking of tobacco products, such as bars and restaurants. Either of these violations is punishable by a $250 infraction.
So say you decide to smoke in the privacy of your own home, go out to grab a bite to eat, and a police officer stops to question you because of the smell of cannabis. Can the officer then conduct a search on you or your belongings to find evidence that you have been illegally smoking marijuana in a public place or are committing another crime? No—as long as there are no “specific and articulable” facts that give rise to a reasonable suspicion of criminal activity (for example, other indications of illegal drug use or sales, like holding an unsealed burnt joint).
Simply put, when out in public places the odor of cannabis alone does not give rise to probable cause such that law enforcement is allowed to search you or your belongings.
In a Motor Vehicle
While this area of the law is rapidly developing, it is fairly safe to say that in most cases the smell of marijuana alone does not provide probable cause for a warrantless search of a vehicle, its driver, or its passengers.
It is illegal both to 1) drive a motor vehicle while under the influence of cannabis and 2) possess an “open container” of cannabis while driving, operating, or riding in the passenger seat of a motor vehicle. A container of cannabis is “open” only if it lacks a lid or some other type of cover or material separating the contents from the outside, such that there is no barrier to accessing the contents. For example, courts have ruled that a plastic bag that is “knotted” is not “open” since a bag that is knotted constitutes “a barrier” to accessing the cannabis inside.
However, if a cop were to pull you over and smell cannabis through the window, the officer would be able to search for anything in “plain view” inside the vehicle (say, on your lap, passenger seat, or cup holder) to use as evidence that you were driving while stoned and/or possess an open container. An open container of cannabis within plain view—or the officer's observation of smoking while driving—would in turn provide probable cause to believe that other open containers may be found in the vehicle. In these situations cops would have probable cause to search the vehicle itself and both the driver and the passenger for further evidence of driving while under the influence and/or contraband.
Overall, law enforcement can no longer use the smell of marijuana alone to justify a search of a vehicle (besides that which is in plain view). Still, it is imperative that cannabis users exercise caution in order to minimize the probability of a search (and maximize theirs and others' safety). This can be accomplished by 1) not smoking inside your car before you drive; 2) not smoking or ingesting cannabis while driving, including passengers; 3) never driving while under the influence of cannabis; 4) ensuring all cannabis is in closed containers; and 5) keeping open or previously-opened containers of marijuana stored inside your glove compartment or trunk.
Some of the recent case law used:
- United States v. Martinez, 811 F. App'x 396 (9th Cir. 2020)
- People v. Johnson, 50 Cal. App. 5th 620 (2020), review denied (Aug. 12, 2020)
- United States v. Cotton, No. 17-10171, 2020 WL 5758018 (9th Cir. Sept. 28, 2020)
- United States v. Maffei, 417 F. Supp. 3d 1212 (N.D. Cal. 2019), aff'd, 827 F. App'x 760 (9th Cir. 2020)
- People v. Fews, 27 Cal. App. 5th 553 (2018), review denied (Jan. 16, 2019)
- People v. McGee, 53 Cal. App. 5th 796 (2020), review denied (Oct. 28, 2020)
- People v. Lee, 40 Cal. App. 5th 853 (2019)
1. Of course, if the smell of unburnt cannabis is unusually strong or overwhelming—like with the odor that might come from fifty pounds or fifty plants—then a court may decide that a trained and experienced officer does indeed have probable cause to search such a residence based on the officer's reasonable belief that there is more than one ounce and/or six plants in the residence.