Can an odor of marijuana justify a police search in Virginia?

It happens all the time.  Police smell an odor of marijuana or other drugs on a person, in a home or in a car.  Does the odor give police probable cause to search the person, home, or vehicle without a warrant for Possession of Marijuana in Virginia?

In most instances, the answer is “yes.”  In fact, one recent case illustrates the danger of one being in a vehicle wherein others smoked marijuana at some previous time.

An odor of marijuana can support probable cause for a warrantless search.

In Bunch v. Commonwealth, 51 Va. App. 491 (2008), the Court embraced the plain smell doctrine. The Court held that “[u]nder the Fourth Amendment, ‘probable cause may be supported by the detection of distinctive odors.'” Id. at 496 (quoting United States v. Haynie, 637 F.2d 227, 234 (4th Cir. 1980)). For example, “‘if an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana.'” Id. (quoting United States v. Humphries, 372 F.3d 653, 660 (4th Cir. 2004)). Likewise, “the detection of the odor of burning marijuana emanating from the open door of a residence, by a credible law enforcement officer who is familiar with its smell, provides that officer with probable cause to believe contraband is present inside the residence.” Cherry v. Commonwealth, 44 Va. App. 347, 357-58 (2004).

However, the existence of probable cause does not automatically grant a right of immediate entry to police officers.  There must be something else, such as exigent circumstances or inevitable discovery.  Krebs v. Commonwealth, 2011 Va. App. LEXIS 400 (2011).

Also, there is some debate as to whether the odor needs to be “localized” or not.  However, the defendant almost always loses because anything that can corroborate the smell, such a “furtive” movements, is enough to justify probable cause.

Finally, there is some debate over the smell of burnt marijuana versus fresh marijuana.  However, the Court, in a split decision, has come down in favor of treating the smells identically.  See the opinion and dissent in Ervin v. Commonwealth, 57 Va. App. 495 (2011).

May Law, L.L.P. are trial lawyers with offices in Arlington, Fairfax, and Staunton, Virginia.

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