If officer smells marijuana, is he allowed to search my car?

Categories: DUI Marijuana in Colorado

If the police officer smells marijuana, are they allowed to search my car

Message from Schwaner Law

If an officer merely smells marijuana, he is not allowed to search your car based solely on that fact. In Colorado, odor alone does not give an officer probable cause to search your vehicle for contraband, or act as evidence that you might be driving under the influence. This is particularly true because possession of certain quantities of marijuana is perfectly legal in our state.

If an officer attempts to use the smell of marijuana by itself as probable cause to search your car, you do not have to consent to the search. However, in practical terms, an officer who does smell marijuana may have his or her suspicions raised. The officer may try to come up with other reasons to conduct a search in order to find evidence that some crime was committed. But do not forget that an officer’s suspicious do not determine when they can or cannot conduct a search.

Search & Seizure Laws

Colorado is one of only two states where it is perfectly legal for an adult over the age of 21 to possess marijuana (up to an ounce). However, that does not mean that there is no risk of penalty for marijuana use, because possession of more than that amount can result in both misdemeanor or even felony charges. For this reason, it remains critical to protect your legal rights, including your right to be searched only when lawful.

The Fourth Amendment of the U.S. Constitution bars unlawful searches and seizures by government officials. The general rule is that a search warrant is required for a law enforcement official to conduct a search in places where a person would have a reasonable expectation of privacy. The search warrant must be written in such a way that only allows for searches in specified places and items, and must cite probable cause.

However, a traffic stop by the police can be a complex exception to this rule. Search warrants are generally not necessary to search a driver’s vehicle for contraband during a traffic stop. In addition, it is important to remember that if consent is given to search, the police are free to search your vehicle, and its contents would be fair game to use against you.

The Automobile Exception

If police conducting a traffic stop have probable cause to believe that an automobile contains evidence of a crime, the officer need not secure a warrant to search the vehicle. Police must show that the vehicle was capable of being driven away and potential destruction of evidence was likely to occur.

What Can Police Do During a Traffic Stop?

Once police officers have lawfully stopped a vehicle they are authorized to do the following:

  • Order the occupants out of the vehicle;
  • Conduct Dog Sniffs around the outside of the vehicle;
  • Actions reasonably related to the traffic stop;
  • Frisk for weapons if probable cause exists, and
  • Search the vehicle if probable cause exists that it contains contraband or evidence of a crime.

Note that there must be a connection between the potential crime and the initial reason to search the vehicle. However, there is no rule that excludes other items found in the search that do not have a connection to the initial reason to search. (i.e., police can search a vehicle for drugs during a traffic stop if there is probable cause to believe there might be drugs in the vehicle.). Yet, do not forget–the smell of marijuana in the car does not constitute that probable cause.

Was Your Vehicle Unlawfully Searched?

The laws on search and seizure are complex. If you feel you were arrested based upon an illegal search by police officers, you need an experienced attorney on your side. The Law Offices of Christian A. Schwaner, P.C. can help you understand your rights. Contact us today for a free consultation.