Smell of Unburnt Marijuana Does Not Provide Probable Cause Justifying Warrantless Search of Vehicle

August 11, 2014
By Parker Scheer LLP on August 11, 2014 6:46 PM |

After Massachusetts made it legal to possess one ounce or less of marijuana, the Massachusetts Supreme Judicial Court (SJC) ruled in Commonwealth v. Cruz that the odor of burnt marijuana alone could not provide reasonable suspicion of criminal activity to justify a warrantless search. In a recent case, the SJC expanded that decision and held that the smell of unburnt marijuana does not provide probable cause for the police to search a vehicle.

In Commonwealth v. Overmyer, the defendant was involved in a motor vehicle crash. When the police arrived at the scene, they encountered a "very strong odor" of unburnt marijuana emanating from the defendant's vehicle. After questioning the defendant about marijuana being present in the vehicle, the defendant acknowledged that a bag of marijuana was in the glove compartment, and gave the keys to the police. After the police retrieved a "fat bag" of marijuana, the officers continued to smell an odor or marijuana in the vehicle, and questioned the defendant about the possibility of the vehicle obtaining a larger amount of marijuana. Although the defendant denied this, the police proceeded with a search of the car, and found a backpack in the back seat filled with marijuana.

The defendant was charged with possession of marijuana with the intent to distribute. The defendant moved to suppress evidence on the grounds that the search was unlawful, and that the police lacked probable cause. The lower court agreed, citing the SJC's decision in Commonwealth v. Cruz, and suppressed the marijuana found in the defendant's backpack. The Commonwealth appealed.

In its analysis, the SJC observed that the presence of odors from unburnt marijuana does not reliably predict the presence of a criminal amount of marijuana (greater than one ounce), or that other criminal conduct is afoot. Additionally, different variables could contribute to how each person perceives the odor. Because the strength of the smell is subjective, perceived odor depends on factors that vary from person to person. As such, the SJC doubted that a human nose could discern the presence of a criminal amount of marijuana based solely on perceived odor, and thus that factor alone could not provide probable cause to justify a warrantless search. Accordingly, the SJC agreed with the lower court that the police's perception of an odor of unburnt marijuana did not justify the warrantless search of the defendant's vehicle.