Legal Possession: Should the Odor of Marijuana Amount to Probable Cause?

Possessing marijuana is legal in many states but what does this mean for law enforcement officers who smell an odor of marijuana in a state where the substance is legal to possess?


Our marijuana defense lawyers are encouraged by the decriminalization and legality of marijuana in multiple states but there are still many questions left unanswered surround marijuana enforcement.

Marijuana laws have made it legal to possess and use various amounts of marijuana depending on the state. Since the Supreme Court’s decision in Taylor v. United States in 1932, law enforcement officers have been allowed to utilize their sense of smell to help detect whether a crime is afoot.

Probable cause allows a police officer to circumvent the protections of the 4th Amendment and search an individual who may have an expectation of privacy. The precise probable cause standard depends on the circumstances of each case and a lawyer is best qualified to make probable cause determinations and challenge law enforcement officers to defend probable cause choices.

If a police officer claims he/she can smell marijuana it puts you in a difficult situation.

In some situations an officer may claim to smell marijuana simply to gauge your reaction. If you seem nervous then the law enforcement officer may become more suspicious.

You should also be aware that many police officers may think they can identify a marijuana user simply by looking at them. Officers who do this will base their opinions on the stereotypical marijuana user.

However, what if the odor the officer smells is no longer the odor of an illegal substance? If marijuana is legalized then it stands to reason that an officer cannot cite the odor of marijuana as an observation of criminal activity.

Legalization may give law enforcement less leeway and authority to search when it comes to the odor marijuana but it is important to know the law well in your jurisdiction.

Of course there are often limits to the amount of marijuana an individual may have in their possession but there is no way for an officer to reliably claim he/she knows how much marijuana is present based on the odor.

You should always assert your 4th Amendment rights by not consenting to search. An officer does not need to ask to search your belongings if they have probable cause so you should not volunteer or allow an officer to search if you are asked.

The Washington State CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

The Odor of Marijuana and Probable Cause

How To Get A Job In The Booming Legal Marijuana Business, Oct. 10, 2013, By Walter Hickey, Business Insider
More Blog Entries:

Flying With Marijuana Now Legal? Oct. 17, 2013, Los Angeles Marijuana Lawyer Blog
Medical Marijuana Across the U.S.: A Progress Report, Aug. 12, 2013, Los Angeles Medical Marijuana Lawyer Blog

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