Judge says ‘innocent’ odor of marijuana allows police search

NEBRASKA CITY – District Judge Julie Smith has ruled that any odor of marijuana, even innocent odor, is probable cause for police to search a vehicle.

Defense attorneys say officers are not able to distinguish the odor of burnt marijuana from that of legal products like burnt hemp or burnt CBD that smell like marijuana. They say the mere presence of the odor does not provide enough probable cause to override a person’s right against unreasonable search and seizure.

Judge Smith recognizes that law enforcement has a community caretaking role and can investigate even when there is no claim of a crime.

She said the Nebraska Supreme Court has a decades-long tradition of upholding warrantless searches when an officer smells the odor of marijuana.

Smith: “While there may be innocent explanations for the odor of marijuana inside a vehicle, the concept of probable cause is based on the probabilities and does not require officers to rule out all innocent explanations for suspicious facts.”

The judge noted a 2018 case where lawyers argued that the precedent allowing searches based on the odor of marijuana was no longer valid because possession of marijuana is an infraction under Nebraska law and the earlier rulings were made before hemp was legalized.

The judge said the high court had dismissed the argument saying a change in penalty has no bearing on establishing probable cause. The judge said an officer has a duty to investigate.

She said the Otoe County sheriff’s deputy was under the community caretaking doctrine when he noticed a vehicle in a car wash bay in Syracuse with the driver inside.

She said he performed a search without the person’s consent because a marijuana pipe was in plain sight and he smelled marijuana when the driver opened the door in response to his knocking.

Smith: “Nebraska law is clear that the odor of marijuana alone is sufficient probable cause.”

The case, which alleges that 28-year-old Logan Dorsey of Tecumseh was in possession of methamphetamine and an unlawful explosive in March of 2020, is set for trial in Otoe County on Sept. 20.

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