by Leon David Bass, Feb 1, 1999

Imagine smoking a joint while cruising down 315 and then getting pulled over. Imagine further, convincing a court that a cop has no right to search your car when pulled over and your car smells like a weed factory. Robert Jones can.

Pot smell does not justify car search, court says

Jones, who now had plenty of time on his hands, decided to appeal. His argument: the search of his car by Trooper Keener was illegal because the smell of burnt marijuana emanating from the car is not probable cause to justify the search under the Ohio and United States Constitutions. And get this: the court agreed, and reversed his trial and conviction.

Judges Sheila G. Farmer and John W. Wise concurred with an opinion written by Judge Scott Gwin for the Ashland County Court of Appeals holding that "the smell of burning marijuana is insufficient to provide probable cause to search the trunk of appellant's vehicle."

The Fourth Amendment

For example, the court noted that "odors may well persist in locations after the object which generated them is long gone, or be carried by the movement of air to locations where the object which originally created the odor was never present." Furthermore, the court noted that it is easier for a police officer to manufacture claims of suspicious odors than claims of tangible contraband in plain sight, such as a bag of marijuana or a pipe.

Because of the ephemeral nature of odor, the court ruled that before an officer may search a vehicle based on suspicious odors, the officer must confirm the odor with tangible evidence. Therefore, as Trooper Keener's search was predicated only on the smell of marijuana, it was an illegal search under the Fourth Amendment.

Despite clear ruling, Ohio law still smokey . . .

In addition, two of the judges in the Jones Case may have limited Judge Gwin's initial holding that the plain smell of marijuana does not justify a search. Judge Gwin's holding, unlike the Ninth District, does not recognize the "Plain Smell" Doctrine, which states that the smell of pot alone without additional tangible evidence justifies a search. In their separate concurring opinion Judges Farmer and Wise stated that they do recognize the "plain smell doctrine." But as Judge Gwin pointed out in the majority opinion, even under the plain smell doctrine, Judges Farmer and Wise agreed that only the search of the interior of the car, and not the trunk, would be justified when an officer smelled burnt marijuana emerging from the passenger compartment of the vehicle.

In other words, even if the court unanimously recognized the plain smell doctrine, the search of the trunk was still illegal. Two of three judges on the panel that ruled on the Jones case found that the smell of burnt marijuana emanating from a car does give an officer probable cause to search the interior of the car without a warrant, but not the trunk. This adds even more uncertainty to the already uncertain law in Ohio.

Seeing through smoke where the law is clear

A governmental entity may conduct a search and seizure without a warrant in the following narrowly-defined situations: where a search is incident to a lawful arrest, automobile searches, searches when evidence is in plain view of an officer, searches where consent has been given, inventory searches, and searches where exigent circumstances exist, such as when an officer is in "hot pursuit" of a suspect or when an officer suspects the imminent destruction of evidence.

While police officers may search an automobile without a warrant, they still must have probable cause to do so. As stated in the Jones case, "with some limited exceptions, a police officer having probable cause to believe evidence of a crime will be found in an automobile may conduct a search of any part of the vehicle which could reasonably contain the evidence without obtaining a warrant." For example, if an officer had probable cause to believe an illegal alien was hiding in a car, he could search the car, but could not search a small suitcase or glove box in the car because a person could not hide in a small suitcase or glove box.

What about the dogs?

Other cases with similar facts have come out differently, however. For example, one case found that the dog sniff went too far when a cop, who pulled over a suspected drunken driver, found no evidence of the driver's inebriation, but then further detained the driver and decided to bring out the dog in an effort to fish for evidence of illegal activity. There-fore, like the plain smell doctrine, the law in Ohio regarding canine sniffs remains unclear.

No means No: Problems with consent

The Supreme Court of Ohio visited this issue in November 1997 in State v. Robinette. Robert Robinette was pulled over on Interstate 70 for speeding. The officer decided to issue a verbal warning, approached Robinette's car, and did the routine driver's license check. The officer found no violations, and asked Robinette to exit the car and stand behind it. The officer then proceeded to issue Robinette a warning for speeding.

At this point, instead of letting Robinette go, the officer said "One question before you get gone [sic]: are you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?" Robinette denied that he had anything in is car, but the officer persisted by asking Robinette if he could search the vehicle. Robinette testified that he did not believe he was at liberty to refuse the officer's request, and thus automatically answered yes. The officer found a small amount of marijuana and a pill determined to be methylenedioxy methamphetamine (MDMA), and Robinette was arrested and charged with drug possession.

The Ohio Supreme Court reviewed this case. It first looked at the issue of whether Robinette's stop and continued detention were justified seizures. The court first ruled that the stop was justified under the Fourth Amendment as Robinette was speeding. However, the Court then pointed out that once the officer administered the warning, the reason for the stop had ended. When the officer continued to detain Robinette for questioning about crimes, for which he had no probable cause. The Court ruled that "When a police officer's objective justification to continue detention of a person stopped for a traffic violation for the purpose of searching the person's vehicle is not related to the purpose of the original stop, and when that continued detention is not based on any articulable facts giving rise to a suspicion of some illegal activity justifying an extension of the detention, the continued detention to conduct a search constitutes an illegal seizure."

Based on this reasoning, the court noted that a person in this situation may decline to listen to the questions at all and may go on his way. Thus, Robinette was free to walk away in this situation if the officer was not justified in detaining him beyond the warning for speeding. The court held that the officer was justified in briefly detaining Robinette in order to ask him whether he was carrying any illegal drugs or weapons "because such a policy promotes the public interest in quelling the drug trade."

Therefore, an officer can legally detain individuals to briefly ask if they have illegal drugs. But this more difficult issue arises because when the officer asked Robinette if he could search his car, Robinette did not know that he was free to deny permission for a search and thus free to go -- indeed Robinette testified that he felt that he could not go and could not refuse to be searched.

The Court considered a blanket approach that would require officers to state that a person is free to go and/or free to deny consent to a search. However, it decided that a case-by-case approach is more appropriate. The United States Supreme Court has articulated this rule, saying that the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused, must be considered.

Using this "totality-of-the-circumstances" approach, the Ohio Supreme Court ruled in Robinette that, even though Robinette said yes to a search, it was not voluntary, and therefore, the search was illegal. The court reasoned that the officer's words "One question before you get gone [sic]" implied that Robinette was not free to go until he answered the questions. In addition, the court stated that the timing of the additional questions -- directly after the warning -- was also troubling in that the transition between detention and a consensual exchange can be so seamless that the untrained eye may not notice that it has occurred. This could allow officers to coerce citizens into answering questions or consenting to a search they don't have to.

Finally, the court noted that "when these factors are combined with a police officer's superior position of authority, any reasonable person would have felt compelled to submit to the officer's questioning."