For years, police have been using the claim of smelling marijuana as probable cause to search individuals, vehicles, and personal property. And while this measure is considered legal in Maryland, it doesn’t mean that it’s fairly and accurately administered.
In fact, courts have consistently ruled that detecting the odor of marijuana is unscientific and doesn’t provide police officers with a valid reason to search personal property. The only way to even consider changing this rather unfair and arcane technique is to openly discuss it.
According to Counter Current News, the biggest issue with the “smell test” is that a person’s ability to detect and recognize certain odors is entirely subjective and unverifiable. In other words, police officers have the right to search people based on an alleged smell that can’t ever be verified. And considering the current public support of requiring police officers to wear body cameras to promote accountability, this area of law—probable cause to search someone based on an alleged odor that’s open to interpretation—must be, in my opinion, scrutinized.
Furthermore, the article points out that many things—which are totally legal—can smell similar to marijuana. This includes skunk scent, marigolds, skunk cabbage, hops, and even garbage. Think about it. If a skunk is hit a by a car, the skunk’s odor can travel for miles. So, if a police officer sees you and smells a skunk odor, it’s most likely the officer has a legal right to search you and your property. Does that seem fair to you?
Another major problem with the “smell test” is that, while police do find illegal substances during some of these types of searches, officers never report the times their searches don’t yield anything notable. That means there’s nothing to compare the number of times police find drugs to the times they don’t find them during these types of searches. There also isn’t a record of the number of times innocent people have been unfairly profiled and intrusively searched by police officers due to the smell test.
However, the smell test is starting to come under scrutiny in the eyes of the courts. Recently, Arizona’s Court of Appeals ruled that the smell of marijuana is no longer enough in Arizona for police to obtain a search warrant. In a split decision, the judges acknowledged that in the past, the odor of marijuana was enough to provide probable cause that a crime was taking place. Now that medical marijuana is legal in the state, the Court of Appeals ruled that scent alone doesn’t disclose whether a crime has occurred. One judge even referred to the smell test practice as an outdated assumption.
Keep in mind, based on constitutional law, this smell test search is still valid PC in the State of Maryland.
So what can you do if a cop tells you they smell marijuana? Brace yourself for an intrusive search. If you have marijuana on you, then prepare to be legally charged. If you aren’t in possession of marijuana, prepare to be massively embarrassed, inconvenienced, scared, and then let go.