Does Your Traffic Stop Pass The Smell Test?

Police Can’t Search Your Vehicle Just Because They Pulled You Over

If you are like many people, the first time you had (or will have) an interaction with a police officer is when those flashing lights appear in your rearview mirror, and you are pulled over for a traffic violation, suspicion of DUI, or other reason. When the officer approaches your vehicle, it also may be the first time you truly care about the Fourth Amendment to the U.S. Constitution. 

The Fourth Amendment protects all of us from unreasonable searches and seizures by police or other governmental authorities. This includes vehicle searches. If a police officer asks to search your vehicle during a traffic stop, and they ultimately arrest you and charge you with a crime based on what they find, understanding and respectfully exercising your Fourth Amendment rights at that moment could mean the difference between a conviction and an acquittal. 

Police Can Only Search Your Car in Very Limited Circumstances

There is a reason that a police officer will probably ask for your permission before searching your vehicle during a traffic stop: if they don’t get your consent, there is a high likelihood that they have no right to search your car at all. Police only have a right to search your car without your consent under very specific and limited circumstances, including: 

  • The officer has a valid search warrant for your vehicle.
  • You are being arrested, and police are impounding your vehicle.
  • The “automobile exception” to the warrant requirement, which allows a police officer to search a vehicle, including closed containers, if they have probable cause to believe there are illegal goods or evidence of a crime in the vehicle, such as illicit drugs or a weapon, or see such evidence in plain sight. 

It is this last claimed basis for a search that frequently ensnares drivers during traffic stops. The first thing to understand about probable cause as justification for a vehicle search is that the traffic infraction that led to the stop – whether speeding, a broken tail light, expired registration, or even suspicion of DUI – does not usually by itself establish probable cause to support a warrantless search your vehicle.  

But if the officer sees a bag of white powder or a handgun sitting on the dashboard when asking for your license and registration, that is likely sufficient basis for them to conduct a search. 

Is Cannabis Odor Enough Probable Cause For a Vehicle Search?

The issues get a bit stickier when the sight or smell of cannabis is the claimed probable cause for a vehicle search. For a long time, cannabis odor (whether from a burnt joint or raw cannabis in a container) was considered sufficient probable cause to search a vehicle for marijuana, since possession of marijuana was and is – for the moment – a crime in Minnesota. So was seeing pot in plain sight. But the times, as they say, are a-changin’.

Minnesota is on the cusp of joining the ever-growing list of states that have legalized recreational cannabis. Legalization bills are currently working their way through the state legislature. If these bills pass, possession of cannabis (up to the amounts set forth in the legislation) will no longer be a criminal offense. Even though driving under the influence of cannabis and consuming cannabis while in a vehicle will remain against the law, it is as yet unclear whether seeing or smelling cannabis in a vehicle will remain a sufficient basis for a warrantless vehicle search.

The experience and approach of other states that have legalized pot may provide a glimpse of what to expect on this issue if and when Minnesota does so. For example:

  • Vermont legalized recreational cannabis in 2018, and the state’s supreme court concluded in 2019 that the faint odor of burnt cannabis did not establish probable cause.
  • Similarly, the Pennsylvania Supreme Court ruled in 2021 that “the odor of marijuana alone does not amount to probable cause to conduct a warrantless search of a vehicle.”
  • Legislators in Missouri and Illinois, which have both legalized recreational cannabis, have proposed bills that explicitly provide that the odor of marijuana alone does not provide a law enforcement officer with probable cause to conduct a warrantless search of a motor vehicle.

You Have the Right to Refuse a Search – Exercise It

They say there is a difference between theory and practice. This is true at vehicle stops. Even people who understand that they have the right to refuse a vehicle search can get flustered or feel intimidated when pulled over. They may agree to a search because the officer’s “request” sounds more like an “order.” They may think they have nothing to hide or just want to get on their way as quickly as possible. But politely and respectfully refusing the officer’s request is almost always the right call. Here’s why.

If you deny your consent to the search, and the officer searches your car without a warrant or probable cause to examine the inside of your vehicle, any evidence of criminal activity obtained during the search will likely be inadmissible in court. But if you give your consent, anything the police find can and will be used against you – even if they had no other basis for conducting a valid search. 

When you agree to a search, you are essentially giving up the right to challenge improperly obtained evidence. The invalidity of a search is often the cornerstone of a defense in criminal cases, in drug cases in particular.

Given the choice between calmly exercising your Fourth Amendment rights to refuse a search of your car or unnecessarily increasing your risk of a conviction, you should always choose the former. 

If you have questions or concerns about a police search of your vehicle, or are currently facing criminal charges based on the results of such a search, you should speak with an experienced Minneapolis criminal defense lawyer as soon as possible. 

At F. Clayton Tyler, P.A., our proven track record, personal attention, and straightforward approach will ensure the best possible outcome for your case. Please contact us today to arrange for your free, confidential initial consultation