Can the Police Search You if They Smell Marijuana in the Car?

A common question for Baltimore criminal defense lawyers and their clients in Maryland is: Can the police search you if they smell marijuana in a car? The current answer to this question is that it depends. The police may conduct searches of people and vehicles under a number of circumstances. Sometimes they need a warrant, other times a warrant is not necessary. Whether or not the police may search you if they smell marijuana in your car will depend on many other factors surrounding your incident.

When Can Police Conduct a Search in Maryland?

Police may conduct different types of searches under different circumstances. Oftentimes, a search is based on probable cause and under a search warrant issued by a judge or magistrate. When a police officer stops a vehicle as part of a routine traffic stop, this type of search is not possible. While the police may detain a vehicle and its occupants during a traffic stop, they may only do so for a reasonable amount of time. Exactly how long this is will vary from case to case, but it is not long enough for police to obtain a warrant.

Instead, searches of a vehicle, or the people inside the vehicle, must be based on other exigent circumstances that make the search necessary. Police cannot search a vehicle at a traffic stop simply because they want to. However, they can do so if they have reasonable suspicion. This reasonable suspicion could be based on the smell of marijuana. While the smell of marijuana might allow a police officer to search a vehicle for contraband, it does not allow them to search people.

Searching a person under these circumstances is often referred to as a Terry stop or a stop-and-frisk. This kind of search is meant for people who are suspected of being armed and potentially dangerous. As you will read below, the smell of marijuana alone does not give rise to a reasonable suspicion that a person is armed and dangerous.

Recent Court Rulings on Police Searches and Marijuana in Cars in Maryland

This question was recently decided in Joseph Norman, Jr., vs. State of Maryland by the Maryland Court of Appeals.

The Court held that when the police detect the odor of marijuana coming from a vehicle with several occupants, the police may frisk or pat down the occupants of the vehicle as long as other circumstances create some reasonable suspicion that an occupant is armed and dangerous. The smell of marijuana on its own does not create enough suspicion to frisk the vehicle’s occupants.

Facts of the Case

From the testimony of the State Trooper, he indicated that on March 22, 2015, he stopped a vehicle in Somerset County Maryland for an inoperable right taillight. In Maryland, any violation of the Maryland Traffic laws or Transportation Article can be a basis for a traffic stop. The only requirement the police need is “reasonable articulable suspicion” that a crime has been committed or is being committed. The rear brake light, which is required to function, would be a violation of the Maryland traffic laws.

Once the Trooper stops the vehicle and upon approach to the vehicle and making contact with the driver, not Norman, the Trooper detected the odor of marijuana. In Maryland, although marijuana has been “decriminalized” for small amounts, the odor still creates probable cause to search a vehicle. See Robinson v. State.

The Trooper in the Norman case smelled the odor of marijuana and asked the three occupants to exit the vehicle. Norman was not the driver but merely a front seat passenger in the vehicle. Before searching the vehicle, the Trooper frisked the occupants of the vehicle, which is a pat-down of the exterior of each individual. The officer does not lift up any clothing or reach into pockets or other areas of the individual during a pat-down.

When the Trooper frisked Mr. Norman, the Trooper testified he felt what seemed like multiple suspicious items in his pants. The officer also said that it felt like plastic or cellophane-covered individually packaged bags of drugs in Norman’s pant pocket. They continued to feel the pant pocket of Norman and then shook the pant pocket with led to a bag of marijuana dropping to the ground. The passengers were arrested and further drugs were found on Norman and some illegal substances found in the vehicle.

The Court Stated in Their Ruling:

The court, in this case, ruled that the officer could have stopped the vehicle and asked all the occupants to exit so that he could search the car. The smell of marijuana supplied the necessary probable cause to allow the officer to search the vehicle. However, the standard for searching a person is different. In the above case, the search of the vehicle’s occupants was held to be unlawful because the officer did not have the necessary reasonable suspicion to search them.

A stop and frisk is a type of search where police can stop a person and quickly pat them down to search for dangerous weapons. This kind of stop usually must be based on reasonable suspicion that the person is armed and dangerous, and the stop is necessary to ensure the officer’s safety. The search in the above case was unlawful because, even though the officer could smell marijuana, there was no indication that any occupants were armed and dangerous. Therefore, the officer could search the vehicle but not the occupants. For the search to have been lawful, the officer would have had to have additional reasons beyond the mere smell of marijuana to lead them to believe the occupants were armed.

What Can the Police Do If They Smell Marijuana in Maryland?

If the police detect the odor of marijuana emanating from your vehicle during a traffic stop, this will undoubtedly make them suspicious. While marijuana has been decriminalized in Maryland, it is still contraband and may be used as grounds for probable cause or reasonable suspicion to conduct a search. However, the smell of marijuana, on its own, does not permit the police to search your body.

The police are limited to only searching the vehicle in this situation, as long as there are no additional causes for concern. However, if the police have reason to believe you are armed, they may search your body for weapons. For example, if the police notice a gun poking out from under your seat, they might believe you or someone else in the car has another weapon on their person. If that were the case, the officer would be allowed to remove you from the car and search you.

What Can I Do If the Police Searched Me Based on the Smell of Marijuana in My Car in Maryland?

If the police conducted an unlawful search of your person, they have violated your constitutional rights to be protected from unreasonable searches and seizures. If the police did not find anything on your person when they conducted the search, there might not be much for us to do. The courts might think of this as a harmless error. However, if the police found contraband on your person and now you are criminally charged, we can work to have the evidence against you suppressed.

The only evidence that is lawfully obtained may be admitted in court as evidence. Evidence obtained in violation of the defendant’s rights is “tainted” and will not be allowed in court no matter how significant it is. Let’s say that the police searched your body unlawfully based solely on the smell of marijuana on your car. Let’s also say they found a large plastic baggie of cocaine in your jacket and now you are charged with possession. We can argue in court that the seizure of the cocaine was illegal and should not be allowed in court as evidence. Without that evidence, the prosecution has no case and we may be able to get your charges dropped.

Speak with our legal team about your case to figure out what your next steps should be.

Call Our Maryland Criminal Defense Lawyers for a Confidential Legal Consultation

If you were stopped by the police for a traffic stop, regardless of whether you were the one driving, and the police not only search the vehicle but search you as well, please contact our Maryland criminal defense lawyers. The smell of marijuana alone is not enough to permit this kind of search. Call Rice, Murtha & Psoras at (410) 431-0911 to set up a free consultation with our staff.