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What Does the Plain Smell Doctrine Look Like in the United States Today and Is Smell a Probable Cause?

The legality of cannabis has changed over the years in the United States, with some states still classifying marijuana as an illegal substance. As of 2021, Connecticut and New York became two new states to legalize recreational and medical marijuana. But the battle and grey areas surrounding cannabis laws continue.

One such area is probable cause. Specifically, whether officers can rely on senses other than sight to search for cannabis without a warrant. If you use cannabis in your apartment, your kitchen, or even your car you may be wondering, is smell a probable cause? The cannabis odor experts at Cannabolish are weighing in!

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What Is the Plain Smell Doctrine?

The plain view doctrine has existed in Canada and the United States since the 1970s. It states if contraband is in a police officer’s plain view, they have the right to search without a warrant.

The plain smell doctrine is similar, but refers to a situation in which an officer establishes probable cause based on the detection of an odor.

This plain smell exception has led to some subjectivity around probable cause, forcing the question is probable cause smell? Or, more specifically, is the smell of weed enough to search a car?

Unfortunately, the answer isn’t as cut and dry as in the case of plain view, and has led to debates at both federal and state levels.

Cases That Helped Define the Plain Smell Doctrine

According to the Centre For Sensory Studies, the plain smell doctrine first appeared in an American legal case in the 1970s. In the United States v. Anderson, the Tenth Circuit Court upheld that officers were within their right to search a car that smelled like marijuana based on additional visual clues at the scene. In “plain view” officers could see a “marijuana cigarette” in the ashtray and detected a distinct smell. This amounted to enough probable cause for a warrantless search.

In the United States v. Curran, the Ninth Circuit also ruled that smell alone was enough to search a defendant’s car. In that case, a customs agent leaned down to the defendant’s trunk and smelled the odor of marijuana. The agents then conducted a warrantless search and seized large amounts of cannabis. And while the case ultimately led to the discovery of contraband, the Circuit Court’s reasoning for ruling in favor of plain smell redefined the plain smell doctrine once again.

In the United States v. Curran, the Courts decided there was no distinction between “leaning down and turning the head to look inside a motor vehicle to see articles” and “leaning down and sniffing to detect the odor of marijuana.” This was one of the first cases in which the smell of weed alone gave officers probable cause to conduct a warrantless search on a vehicle.

The Contentious History of the Plain Smell Doctrine in the United States

The United States v. Anderson and United States v. Curran are just two examples of many in which a United States Court accepted probable cause on the basis of smell. But Canadian Courts have been more cautious about ruling in favor of “in plain smell” due to the lack of a “clear test for its application” and the subjective nature of smell.

According to the Hierarchy of Senses, sight and sound are considered senses that deal in objectivity. While touch, taste, and smell are more subjective, varying from person to person. The subjectivity of smell has caused some Canadian Courts to worry about the potential for abuse and, therefore, have caused Courts to side with the accused as opposed to the police.

Experts have also pointed out that smell lingers and for officers to successfully use their sense of smell as probable cause, they often need to rely on visual queues as well to create context. A car or subject may smell like cannabis hours, even days, after cannabis use which could lead to violations of privacy.

Is the Smell of Weed Enough to Search a Car?

Ultimately, whether a Court weighs in favor of probable cause based on smell comes down to where you live. For those in Canada, it’s less likely that a Court would side with the plain smell doctrine. It seems a Court in the United States is far more likely to recognize smell as probable cause. Moreover, your area’s specific cannabis laws will define the repercussions for marijuana possession and should be considered as well.

If you’re concerned your car or home smells like cannabis and you live in an area with hazy cannabis laws, managing the smell of cannabis will be important if you intend to use it freely. To stay up-to-date on cannabis industry news like this and exclusive deals on Cannabolish products, sign up to be a VIP in the footer.

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