You may have seen police officers in popular movies or TV shows use the sight or odor of cannabis as cause to stop or search a suspect’s car. But since Prop 64, the presence or smell of marijuana at a California traffic stop isn’t a free pass to conduct a search or make an arrest. Many court decisions have shown that the sight or smell of cannabis isn’t enough to uphold a search.
Your Rights in Search and Seizure Cases
The Fourth Amendment of the U.S. Constitution establishes your freedom from unreasonable searches and seizures. In most cases, police must obtain a warrant before searching or seizing your property. Warrants must be based on probable cause that you have committed a crime or are linked to criminal activity.
Some exceptions allow police to search you or your vehicle without a warrant, but they are narrow. If you or your car are searched without a warrant, and no exception applies, the search may be illegal. Evidence obtained through illegal searches cannot be used against you in court and may be grounds to get the charges against you dismissed.
Police may ask you for a voluntary search, so they don’t have to obtain a warrant. You do not have to consent to a search; if you decline and no exception applies, the police must obtain a warrant.
What Is Probable Cause to Search at a California Traffic Stop?
California’s criminal procedure provisions outline the concept of probable cause. An officer doesn’t need a warrant to search a vehicle or arrest someone they witness or suspect has committed a crime.
Post-Prop 64 and Probable Cause
Since Prop 64 took effect, there have been interesting developments supporting that the smell or sight of a small amount of cannabis does not constitute probable cause for entry or searches of vehicles at traffic stops.
In fact, many cases have suppressed searches conducted based on the odor of personal use cannabis or small amounts in plain sight. Many of these cases — see People v. Johnson (2020) and People v. Hall (2020), for example — stem from California traffic stops and vehicle searches due to the automobile exception and a lower expectation of privacy in a personal vehicle.
However, a few recent cases have also shed light on terry stops. In re D.W. (2017) reversed an earlier decision upholding a search of a juvenile who smelled like marijuana and admitted to smoking some. Upon review, the court found that the search failed to satisfy the Fourth Amendment because the juvenile was guilty of an infraction, which was insufficient to justify the search or arrest.
Important Exceptions for Post-Prop 64 Search Cases
While many post-Prop 64 cases imply that the sight or smell of cannabis isn’t enough to justify a search or traffic stop, this isn’t a given for all similar cases. A notable exception includes People v. Moore (2021), where a search was upheld due to the strong odor of fresh (unburnt) marijuana. The court also upheld a traffic stop and search in People v. McGee (2020), where an unsealed bag of marijuana was plainly visible on a vehicle passenger’s person.
So, while the overall trend of the court’s recent decisions shows an inclination to suppress stops and searches based on the sight and smell of cannabis, the changes in practice since Prop 64’s passing are still being scrutinized.
Were You Stopped or Searched for Cannabis Use/Odor? Call McElfresh Law
Traffic stops can be stressful, even if you know you haven’t broken the law. If you were stopped or searched due to the odor or sight of cannabis, you might have questions about your rights and legal options.
Attorney Jessica McElfresh has years of practice in both criminal defense and cannabis law in California. Her diverse experience uniquely equips her to take on your case, answer your questions, and defend your rights. Precedent shows that the smell or sight of cannabis usually isn’t enough to justify a search — this can work in your favor, depending on the circumstances of your case.