If you are stopped by police and the officer declares “I smell the odor of marijuana”; can the officer then search your car without a warrant? In the past, that simple statement “I smell marijuana”, was enough to open the door for police to search a person’s vehicle and property without a warrant or any other justification. Courts have traditionally recognized both plain view and plain feel, as valid exceptions to the search warrant requirement. Building upon those two exceptions, the Ohio Supreme Court, in State v. Moore, held that the the plain smell of marijuana provided adequate probable cause to justify a warrant less search of a vehicle. However, the plain smell exception is now being challenged in states that have decriminalized marijuana.for recreational and medical use. Some experts have advocated for an “odor-plus” standard, which requires more than just an officer detecting an odor of marijuana. Under this new standard, a police officer would not only need to detect an odor of marijuana, but would also need to observe one or more additional factors to support a warrant less search. Those additional factors include: knowledge of a person’s prior narcotics violations; evidence of nervousness or signs of impairment; or evidence of large amounts of cash in a person’s possession. One of the major concerns with the plain smell exception is racial bias and profiling. A glaring example of this concern is a recent DEA training program called “Operation Pipeline” which encouraged officers to learn how to lengthen a routine traffic stop, and leverage it in to a search for drugs, by extorting consent or manufacturing probable cause, through claims of the presence of an odor of marijuana. An “odor-plus” standard would remove the rubber stamp of the plain smell exception from the hands of police, and hopefully restore an individual’s right to privacy.
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