The Police Officer Says He Smelled Marijuana in My Car. In Maryland, is He Allowed to Search the Vehicle?

Probable Cause Standard for a Vehicle Search
Let’s say you were just pulled over by the police. The officer claims that you committed a traffic infraction such as speeding, running a stop sign, or because a tail light is out. Presuming that you did commit the traffic infraction and the officer witnessed it, he is within his rights to pull you over. However, just because he can pull you over does not automatically mean that the officer has the right to search your vehicle. The police may search a vehicle without a warrant and without consent if they have probable cause that the car contains evidence of a crime.

Smell of Marijuana is Probable Cause to Search?
In Maryland, the officer’s belief that he smelled marijuana coming from a vehicle is often probable cause to believe that that vehicle contains evidence of a crime, i.e. more marijuana. The Maryland Court of Special Appeals in the case of State v. Harding, 166 Md. App. 23 (2005), ruled that the smell of burnt marijuana by an officer gave the police probable cause to search anywhere in the vehicle where marijuana could be located. In 2007, the Court of Special Appeals further expanded upon this police power in the case of Wilson v. State, 174 Md. App. 434. In Wilson the Court ruled that the officer could also search the closed trunk of a vehicle if he smelled marijuana.

As a defense attorney, I have encountered numerous statements of probable cause written by arresting police officers stating that the officer smelled marijuana as a justification for searching the vehicle. Now, if someone in the vehicle was recently smoking or the search turns up what appears to be recently burnt marijuana, then it’s understandable. However, the cases that I am seeing are quite the contrary.

The way the law is in Maryland, police officers have an incentive to say they smelled marijuana, even in situations where common sense suggests otherwise. For example, if the police find a small amount of fresh marijuana wrapped in packaging and stored in a closed compartment in the car, does it reason that they actually smelled that prior to searching? What about if they don’t find any marijuana at all but find cocaine or another drug? What if there are no drugs at all but the cops find an illegal handgun instead? Under those circumstances it simply does not make sense that the officer actually smelled marijuana prior to searching and instead is using that as an excuse after the fact to justify the search.

Grounds to Fight the Search
Regardless of the officer’s statement that he smelled marijuana, these cases can still be fought, and won, on the grounds that the evidence should be suppressed due to lack of probable cause to search the vehicle. The Courts look at the totality of the circumstances in determining whether probable cause exists. It’s a fact specific exercise and often times relies on a detailed cross examination of the officer who claims he was able to smell the drugs.

If you or someone you know is facing a drug possession case, handgun possession case, or any case where the officers searched a vehicle under the pretense that they smelled marijuana or another substance, contact our office today at 301-875-3472 in order to speak with an attorney. Our office offers free consultations over the phone or in person. We can give you an assessment of your case and work to defend against any case, no matter how serious the charges.

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