Despite Legal Marijuana Law, Odor in Car Still Creates Probable Cause to Search

State v. Seckinger, 920 N.W.2d 842 (Neb. 2018)

Kathy Seckinger sped into an intersection across four lanes of traffic, cutting off a state trooper and another driver. The trooper slammed on the brakes to avoid a collision, then stopped Seckinger. When the trooper walked up to Seckinger’s car, she smelled the odor of burnt marijuana coming from inside. The trooper told Seckinger she could plainly smell marijuana, but Seckinger denied smoking and said there could not have been marijuana in the car some time before. She also refused to consent to a search.

Based on the long-established mobile vehicle exception to the search warrant requirement, the trooper searched Seckinger’s car. She found over 4 grams of methamphetamine and arrested Seckinger.

Seckinger did not challenge the basis for the stop, the scope of the search or the duration of the detention prior to her arrest. Instead, she based her appeal on the single claim that the odor of marijuana emanating from a vehicle could no longer provide probable cause for a search. Seckinger argued marijuana possession was legal in Colorado, a state about 60 miles south of the stop (as the unstoned crow flies). Therefore, it is conceivable the odor of marijuana stemmed from lawful consumption, albeit in another state.

The court succinctly stated the narrow question: “Does the odor of marijuana coming from a vehicle, standing alone, still provide probable cause to search the vehicle?”

Though marijuana possession in some form or fashion is lawful in about half of the United States, it remains unlawful under federal law (21 U.S.C. § 812(c)). Nebraska state law also prohibits marijuana possession. Seckinger’s argument would mean probable cause cannot exist if there is some lawful explanation for the odor of marijuana, such as a fast dash to Colorado for a quick Rocky Mountain high.

The Nebraska Supreme Court disagreed with Seckinger’s logic. The court held: “Assuming the vehicle is readily mobile, the odor of marijuana alone provides probable cause to search the vehicle under the automobile exception to the warrant requirement. And while there may be innocent explanations for the odor of marijuana inside a vehicle, the concept of probable cause is based on probabilities and does not require officers to rule out all innocent explanations for suspicious facts.”

The Nebraska court’s decision is in line with contemporary rulings from other federal and state courts, even in states where some marijuana possession is lawful. For example: Over 10 years ago in California, the nation’s largest state to allow marijuana possession, a court held an officer still had probable cause to search a suspect’s car for marijuana after the officer smelled the drug’s odor. This was despite the fact that the suspect presented an apparently valid medical marijuana prescription, because the state’s medicinal marijuana statute provides a limited immunity—not a shield from reasonable investigation. The court held an officer with probable cause to search is not prevented from doing so by someone presenting a medical marijuana card or a marijuana prescription.

Other courts have ruled similarly. See:

  • People v. Strasburg (56 Cal.Rptr.3d 306, 310 (Cal. App. 1st Dist.), denied, 552 U.S. 1049 (2007))
  • United States v. White (732 Fed. Appx. 597 (9th Cir. 2018))—Despite Nevada’s legalization of medical marijuana, the smell of marijuana emanating from a vehicle still provides probable cause for warrantless search because nonmedical marijuana remains contraband.
  • Robinson, Williams & Spriggs v. State (152 A.3d 661 (Md. 2017))—Despite decriminalization of less than 10 grams of marijuana, marijuana remains contraband and the odor of marijuana emanating from vehicle provides probable cause to search a vehicle.
  • State v. Cheatham (375 P.3d 66 (Az. 2016))—Although the Arizona Medical Marijuana Act created limited exception to laws proscribing marijuana, the odor of marijuana alone supports probable cause to search a car unless totality of circumstances suggests marijuana possession complies with the Act.
  • People v. Zuniga (372 P.3d 1052 (Colo. 2016))—Despite California’s legalization of 1 ounce or less of marijuana, the odor of marijuana is still relevant to the totality of circumstances test and can contribute to probable cause determination.

As more and more states allow medical and recreational marijuana possession, expect more challenges to searches based on the odor of marijuana—whether detected by the officer or a drug detector dog (see the forthcoming 3rd edition of The K9 Officer’s Legal Handbook for further discussion of the impact of relaxed marijuana laws and detector dogs). Officers must carefully document the observations that lead to probable cause, their training and experience in detecting the odors of contraband, and their understanding of search and seizure principles. It won’t work to simply state, “saw drunk, arrested same” (with thanks to Dave Smith AKA Officer J.D. Buck Savage) or “smelled weed, searched and arrested.”

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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