Welcome back to another post from the blog of Criminal Defense Attorney David Johnson of Johnson Law Office, P.C. Our offices are in Noblesville, the county seat of Hamilton County, Indiana. Our law office focuses on DUIs (OVWIs) with a secondary emphasis on drug crimes.
Lately I’ve been writing about DUI topics but I thought I would change it up this time and write about drug crimes. The topic today deals with marijuana in your car. When a police officer pulls you over for a traffic infraction, that officer will approach your vehicle and ask you for your driver’s license and registration. With your window rolled down, that officer will be able to smell the obvious odor of marijuana–raw or burnt–that comes out of your car or off of your clothing. Once the officer smells that obvious odor, the officer now has probable cause to search the vehicle. Anything found during that search is not going to be “thrown out” at a later court hearing known as a “suppression hearing” where the defense attorney seeks to challenge the search on the basis of the Indiana Constitution and the United States Constitution. There is at least one jurisdiction outside of Indiana where the mere allegation of the officer’s detection of the odor of marijuana is not enough to establish probable cause for the search.
For the foreseeable future in Indiana, the officer’s assertion that they smelled the odor of marijuana still constitutes probable cause for a search of the car. But what about the situation where the officer is not quite sure whether he smells the odor of marijuana? In those situations, two or three other options are available: (1) the officer calls for a K9 officer; (2) the officer engages the driver and passengers, if any, in conversation to see if the story rings true or if someone just does not add up; and (3) the officer runs the driver on his laptop. The criminal history on the driver might reveal a prior arrest or conviction (or several) for drug-related charges. All of these three factors contribute to a drug investigation arising from a traffic stop. There is enough substantive material here to justify another blog post, so for now, let’s get back to the officer detecting the odor of marijuana in your car or on your clothing.
One question I ask of my clients who have been arrested for possessing of marijuana or dealing in marijuana is “When was the last time that marijuana was in your car, either raw or smoked?” When clients answer that question by saying that it was “only a couple of hours ago”, they act surprised that an officer can still detect the odor of marijuana from just a few hours ago when they smoked it in their car. Similarly, when a client is transporting raw, high-grade marijuana in their vehicle, that odor would make a skunk hold his nose. Yet I often hear the client say, “There’s no way that he (the police officer) smelled it.” It is beliefs like this that give me job security.