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  1. #1
    Join Date
    Dec 2010
    Posts
    1

    Default Plain Smell Search Based on Smell of Marijuana

    My question involves criminal law for the state of: DC.

    This has become a "hot" topic of discussion within my department. It seems to be a bit of confusion about legal rights between searching a person based on "plain smell" while sitting @ park bench or during a traffic stop. Here are the facts:
    1.- 2 male Officers on foot patrol
    2.- smell strong odor of what appear to be Marihuana (MJ) - (cant confirm until we test it).
    3.- suspects - 1 male + 1 female.
    4.- male has a lighter on his hand and some small green leaves on his shirt at chest level
    5.- both were acting very nervous, specially female
    6.- female was on parole
    7.- They were the ONLY 2 pp on the park at 2.30am
    Q: Was there enough PC to search the female since male companion didnt have any marihuana on his possession?
    ** officers called for a female officer to search female suspect and CSS to test drugs (we dont carry kit with us during foot patrol). A female supervisor responded to location and cancel request for CSS and S.O.W (send free) individuals - no further police action was taken.
    Any comments and suggestions pertaining to this incident will be greatly appreciate it

  2. #2
    Join Date
    Feb 2010
    Location
    CT & IL
    Posts
    5,273

    Default Re: Plain Smell - Mj

    If he can smell it (and who cannot, right?) then he can search.

  3. #3
    Join Date
    Sep 2010
    Posts
    19,430

    Default Re: Plain Smell - Mj

    The odor of Marijuana was probably sufficient. The boyfriend having or not having marijuana really doesn't affect it one way or the other with respect to her.
    Did she identify herself as being on parole. Some parole conditions waive probable cause for such searches.

  4. #4
    Join Date
    Aug 2007
    Posts
    3,835

    Default Re: Plain Smell - Mj

    Since this is DC, there is no state constitutional protections to consider as being more restrictive then the federal, so federal controls.

    There are carefully carved exceptions to a warrantless search, as a search absent a warrant is "presumptively Unreasonable".

    As Ron points out if a person is on parole/probation, the terms of that may waive any consensual search.

    Let's assume this is a no on a condition.

    An officer who has "probable cause" to believe a person has contraband on them can search absent a warrant, sometimes, this is not absolute; compare Minnesota v Dickerson US SC.

    If he has PC to effect a warrantless search, he has PC for an arrest first.

    The federal constitution also permits a search before arrest IF the officer has PC to arrest, see Rawlings v. Kentucky. Usually it is the other way around, an arrest, then a search, called a search "incident to arrest".

    There is a phrase in the law known as the "totality of the circumstances".

    If the facts are totalized to produce PC, then it is "possibly" a permissable warrantless search.

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