Officer said he smelled marijuana

[CdwJava]

What is the name of your state? Ca.
While driving on the freeway, my friend was pulled over for allegedly getting to close to a big rig while passing it. Not true, but anyways, She pulls over,

Okay, so we have established that the officer's detention was based upon reasonable suspicion that the driver made an unsafe lane change or turning movement. Note that "reasonable suspicion" does not mean "certainly guilty" only that the officer had an objective and reasonable belief that an offense was committed.

the cop requests both our I.d.s, walks back to his car

The driver HAD to show their ID. I presume you volunteered yours?

and then comes back and first thing he says is “I smell marijuana, that’s probable cause, step out of the vehicle!”.There was no marijuana in the car, neither of us smoke.

Well, the odor of marijuana in a moving vehicle would generally be sufficient probable cause to search a vehicle. Is there a chance that someone else had been using the vehicle any time recently? Were you near people who were smoking it earlier? Marijuana has a distinctive odor and can remain within the interior of the vehicle, on clothing or other objects, and on people for some time.

Mind you, my friend and I are women in our 50’s, then he and another cop who had showed up started to tear the vehicle apart while looking for drugs. It then dawns on my friend that she had an arrest 15 years ago for drugs, did her time, and has been a law abiding citizen since. My question is; aren’t cops schooled in the D.O.J. laws in which the person who completes the requirements of said law or is she going to have to go through this every time she gets pulled over for a minor traffic infarction?

I'm not sure what you are thinking about when you use the term, "DOJ laws." The DOJ doesn't pass laws, they are a law enforcement agency with multiple responsibilities and a part of the Executive branch of the state. But, in general, an officer can conduct a warrantless search if they have both probable cause and an exigency, or, if they have consent. If they smell the odor of marijuana in a moving vehicle, that is generally sufficient to fulfill the requirements.

And, if your friend's car smells of marijuana, then she may well be subject to more searches if she gets stopped again.

He then asks her if she‘s ever been arrested, she says no because the judge told her after the completion of the D.O.J. that the only time she needs to claim that is if she is applying for employment with local law enforcement or the Ca. State Lottery, which neither one of those apply.

So, she had her record expunged?

So after he calls her a f***ing liar, she reminds him of what the judge told her and he replied, whatever. What would be the proper way to handle this situation in the future so she doesn’t have to suffer the embarrassment of having to have her vehicle searched, etc. and then be called a liar?

Either the officer was guessing and rudely responded to her statement with an outburst that he had intended to cause her to admit to a more recent arrest, or, he ran her local or state criminal history and found the arrest or conviction there. (As a note, it probably would not have been her state criminal history, but a local check - assuming you were stopped in the same county where her arrest and conviction had been - is easy enough.)

In the future, she could say that she was arrested 15 years earlier but her record was expunged. Or, she could decline to state anything at all. No law requires her to say whether or not she has been arrested or convicted of anything before.

Her issue is that she did what was required of her by the court and she doesn’t want to have to get into it while her kids are with her should that situation arise again. Also, I thought I didn’t have to provide I.d. if I’m not the one driving. We were not nor were we suspected of committing any crime, so what did I have to do with anything? Thank you for any advice in advance, I really do appreciate and respect your replies.

It's common practice to ASK for everyone's IDs in some situations. I suspect that if you as the passenger was asked for ID the officer thought something else was afoot and it was not simply a traffic stop. Why the officer thought that, I could not venture a guess. It could be the car, the area you were in or had come from, or something else. Or, this particular officer may simply be in the habit of asking for everyone's IDs so he could go fishing (for probation or parole conditions). Or, he smelled marijuana when he first walked up on the car, asked for the IDs to check for probation or parole conditions, and then decided to act anyway. Generally, on a traffic stop in CA, you wouldn't be required to provide ID as a passenger. There are exceptions to that, but at least initially - when you appear to have volunteered your ID - there appeared to be no legal requirement for the officer to have compelled your identification. In fact, other than as a driver in a traffic stop, you are never required to ID yourself during a detention in California.

 

[CdwJava]

Isn't marijuana legal in California? How does the odor alone of legal conduct form PC to search?

Because marijuana still cannot be smoked in public or in a motor vehicle. And, transportation requires the substance be in a sealed container. If it can be smelled, then chances are it is not in a sealed container and is in the open. If so, then it's a possibility - like with the odor of alcohol - that it is being used in the vehicle.

 

[Taxing Matters]

Well, the odor of marijuana in a moving vehicle would generally be sufficient probable cause to search a vehicle.

If a cop tried to rely on smell alone for probable cause in my state (which is not California) that would fail. But even if it amounted to probable cause, that simply justifies applying for warrant unless there is some other circumstance that allows for a warrantless search, and I'm not seeing anything here that would qualify as exigent circumstances or any other exception to the warrant requirement. Had drugs been found and someone charged I think there'd be a good shot at getting it suppressed just based on the info we have. Of course additional info not presented here could change that.

 

[CdwJava]

If a cop tried to rely on smell alone for probable cause in my state (which is not California) that would fail. But even if it amounted to probable cause, that simply justifies applying for warrant unless there is some other circumstance that allows for a warrantless search, and I'm not seeing anything here that would qualify as exigent circumstances or any other exception to the warrant requirement. Had drugs been found and someone charged I think there'd be a good shot at getting it suppressed just based on the info we have. Of course additional info not presented here could change that.

In CA we permit smell as sufficient probable cause in most instances. The exigency is the presence in the motor vehicle and its inherent portability. Texas may be different, but that's the case in California. I can supply the relevant CA case law if desired.

Granted, the officer's articulation will be important, but, we do permit plain smell here and it exists as a result of pre-legalization law. There may be a case down the road that might change that, but as of now, we still have it. It dovetails along with the odor of alcohol granting the probable cause for a search. Either can be sufficient to support the probable cause necessary to conduct a search for the impairing substance in question.

 

[quincy]

It is possible that the driver consented to the search.

Many people are unaware that they can refuse a search.

 

[Taxing Matters]

In CA we permit smell as sufficient probable cause in most instances. The exigency is the presence in the motor vehicle and its inherent portability.

I'd be interested in how the exigency is established just because the car can move. What prevents the officers from holding the car there and seeking the warrant? If they can do that, then they ought to be required to seek the warrant. Otherwise that seems too easy a dodge around the Constitutional requirement of a warrant.

 

[CdwJava]

The automobile exception has been the standard in 4th Amendment law nationwide since before I started in my career and there is a host of cases supporting it. In recent years it has continued to be upheld through new case law.

A brief smattering of some of the info from the CA Attorney General:

The "automobile exception" is based on probable cause. "Probable cause" to search a vehicle means exactly the same thing that it does in a search warrant context, namely, enough facts, knowledge, training, etc., to provide a "fair probability" that the object you are looking for will be found in the place (portion of the car) you want to search. (Harris (2013) 568 U.S. 237, 243-244; Ross (1982) 456 U.S. 798, 825; Allen (2000) 78 Cal.App.4th 445, 450; Nonnette (1990) 221 Cal.App.3d 659, 665-666.) If you have enough information to get a warrant, you have sufficient probable cause under the "automobile exception." (Dyson (1999) 527 U.S. 465, 466.)


The courts have created an exception to the warrant requirement when it comes to vehicles because of the lower expectation of privacy that people have in them, owing to their mobility and to the fact they are subject to substantial governmental regulation. (Labron (1996) 518 U.S. 936; Carney (1985) 471 U.S. 386; Ruggles (1985) 39 Cal.3d 1.) You do not need any additional dangerous circumstances or exigencies beyond the mobility that is inherent in any vehicle that can be operated. (Dyson (1999) 527 U.S. 465, 466-467; Labron (1996) 518 U.S. 938, 940; Carney (1985) 471 U.S. 386, 390-391.)


It is important to have in mind the following applications of the "automobile exception":
• This "vehicle" or "probable cause" justification for a warrantless vehicle search is entirely separate and different from the "incident to arrest" justification, even though, in some situations, they may both exist at the same time. (Overland (1988) 203 Cal.App.3d 1114; see Gant(2009) 556 U.S. 332 for search of a vehicle "incident to arrest.")
• The "automobile exception" applies not only to any vehicle that is readily mobile, but also to any vehicle that reasonably appears mobile, even if in fact it is not. (Hatley (9th Cir. 1993) 999 F.2d 392, 395.)
• The "automobile exception" applies to other vehicles, including motor homes, vans, bicycles, motorcycles, and houseboats.
• Apart from the "automobile exception," the general "exigent circumstances" exception can also justify a warrantless vehicle search without probable cause. (Panah (2005) 35 Cal.4th 395, 469; see Collins (2018) 138 S.Ct. 1663, 1675; see also Ch.3-IV-A-2.)

 

[CdwJava]

I'd be interested in how the exigency is established just because the car can move. What prevents the officers from holding the car there and seeking the warrant? If they can do that, then they ought to be required to seek the warrant. Otherwise that seems too easy a dodge around the Constitutional requirement of a warrant.

The short answer to this question - in addition to the fact that there has been a longstanding vehicle exception to the warrant requirement - is that the detention would be unreasonable. It is simply not reasonable to hold and detain a person and their vehicle for the time it might take to seek a search warrant. A SHORT warrant process might take 4 hours to obtain. And, since every county has different processes, it might require much longer. In the county where I worked we had to get approval both from the DA or one of the ADAs as well as the judge. Tracking them down after 5 PM and on weekends was no easy task and might require driving to both ends of the county even if they had been given a heads' up with an electronic version of the affidavit.

I don't know how other states handle it, but the vehicle exception has been a staple in police work for as long as I have been a cop and longer. There may be some state that does not permit a search of a vehicle without a warrant, but I'm not aware of one.

 

[Taxing Matters]

The automobile exception has been the standard in 4th Amendment law nationwide since before I started in my career and there is a host of cases supporting it. In recent years it has continued to be upheld through new case law.

And in my view, those cases were wrongly decided. The Constitution requires more than just that probable cause exists, it requires a warrant from a judge or magistrate. The whole idea was to provide a check on law enforcement to ensure that probable cause is confirmed BEFORE the search, not to let law enforcement make the call and have the courts sort it out after. The requirements of the Constitution should not be based on what makes the job easier for cops. But this won't be the first time I've disagreed with the Supreme Court and almost certainly won't be the last.

 

[CdwJava]

And in my view, those cases were wrongly decided. The Constitution requires more than just that probable cause exists, it requires a warrant from a judge or magistrate. The whole idea was to provide a check on law enforcement to ensure that probable cause is confirmed BEFORE the search, not to let law enforcement make the call and have the courts sort it out after. The requirements of the Constitution should not be based on what makes the job easier for cops. But this won't be the first time I've disagreed with the Supreme Court and almost certainly won't be the last.

I can’t say how long exigent circumstances have been part of the law, but that, too, has been a basic legal concept well before my time. We have exigency exceptions for community caretaking (like entering a burning building to check for victims, or entering due to the sign of a crime, or moaning from inside, etc.), so the concept can certainly be carried over into other areas. And, I don’t suppose you’d argue with those emergency situations requiring a search warrant, though under a strict construction theory they would. The concept of exigent circumstances has its place in the law and has for longer than we have been alive.

 

[Taxing Matters]

The concept of exigent circumstances has its place in the law and has for longer than we have been alive.

I don't disagree with the concept of exigent circumstances. However, in my view a car on the side of the road doesn't fall into that category — it stretches it a bit too far.

 

[CdwJava]

I don't disagree with the concept of exigent circumstances. However, in my view a car on the side of the road doesn't fall into that category — it stretches it a bit too far.

As I recall it was the transient capacity of the vehicle that helped transform it into an exigency. Though, one can argue that it is also a convenience to the public as the alternative might be a multi hour detention in the back of a patrol car and three or more officers out of service (and unavailable for other duties) as the police sought a search warrant. Either way, it’s long-settled law and not likely to be overturned any time soon.

 

[Taxing Matters]

Either way, it’s long-settled law and not likely to be overturned any time soon.

I'm not arguing that, the law is what it is. As a lawyer I know well that not all law makes sense and that not all court decisions get it right, but I have to apply the law as it is, not how I wish it to be.

 

[xylene]

If it can be

You yourself, on this very forum have pointed out that any properly trained policeman can discern the odor of marijuana AND burnt marijuana. Each a distinct and unique odor.

This is clearly a case of case law lagging behind legislative changes.

Are these magic odor blocking seals?