Courts have "repeatedly held that the odor of marijuana alone can provide probable cause to believe that marijuana is present." Following up on such precedent, a Maryland prosecutor writes for Police Chief magazine that "no law enforcement agency should forget the importance and accuracy of the human sense of smell." And just last month, Ybor City, Florida, cops followed up on their important and accurate honkers to dismantle a man's truck. They found nothing.
Now, at least, Massachusetts residents May gain a bit of a respite from searches by police wielding the Fourth Amendment-piercing power of their sense of smell.
In earlier coverage of the case of Commonwealth v. Anthony Craan, Jacob Sullum nicely summarized the details:
The case involves a motorist, Anthony Craan, who was pulled over in June 2010 by state police at a sobriety checkpoint. Trooper Scott Irish claimed to smell "the strong odor of fresh, unburned marijuana coming from the passenger compartment." After Irish mentioned this, Craan admitted that he had a plastic bag of pot in his glove compartment, which led to a car search that revealed additional marijuana, MDMA pills, and four loose rounds of ammunition. But at the point when Irish decided to search the car, all he knew was that Craan possessed less than an ounce of marijuana, which in itself is not a crime under Massachusetts law.
The Boston Municipal Court initially let the search stand, denying a motion to suppress. Supported by the National Organization for the Reform of Marijuana Laws, Craan appealed. And higher authorities came to a different conclusion.
In its Craan decision, the Bay State's Supreme Judicial Court built on its 2011 Commonwealth v. Cruz ruling, saying "in view of the decriminalization of marijuana occasioned by the 2008 initiative, 'the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity.'" (Sullum covered the Cruz ruling at the time.)
That's because the odor of marijuana doesn't indicate the quantity, and possession of less than an ounce is decriminalized in Massachusetts in the wake of the passage of Question 2.
The court adds:
Since the enactment of the 2008 initiative decriminalizing the possession of one ounce or less of marijuana, we have held that the odor of burnt marijuana alone cannot support probable cause to search a vehicle without a warrant… As we hold in a companion to this case, neither can such probable cause rest solely on the odor of unburnt marijuana.
The one caution in this decision is that it rests, in part, on the state trooper's decision to let Craan continue on his way. "Far short of arresting the defendant for operating a motor vehicle while under the influence of marijuana, the trooper in fact released the defendant, allowing him to continue driving."
Police officers who really want a marijuana arrest to stick might find out a way to make it happen by insisting a defendant is impaired—a judgment that's often as subjective as the breeze-borne whiff of forbidden herbs.
But the smell of marijuana alone is no longer the basis for a warrantless car search in Massachusetts.