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  • Does the Smell of Cannabis Support Probable Cause?

    Posted on by JACK MKHITARIAN

    smell of cannabisProbable cause must be based on factual evidence – not just an officer’s suspicion. But, how does that play a role in the instance of cannabis? If an officer smells cannabis on an individual or within his or her vehicle, does that give the officer probable cause to search for the illegal substance?

    In order to answer such a question, you must first familiarize yourself with the laws of probable cause, and how these sources are categorized.

    1. Observation – This is information that law enforcement obtains through their own senses – such as smell or sight. This is also used when an officer detects a pattern of activity or suspicious behaviors.
    2. Expertise – An officer may have skills that he or she is specially trained in, such as reading graffiti or gang signs. In this instance, an officer can rely on his or her expertise to consider if there is probable cause.
    3. Information – Statements that have been provided to law enforcement, such as through witnesses or victims, could be used to establish probable cause.
    4. Circumstantial Evidence – This is any type of indirect evidence presented that implies that a crime has occurred.

    Sometimes, limited resources are sufficient enough for officers to exercise “probable cause” and search a person when they suspect cannabis. However, they still need probable cause to obtain a search warrant – unless they feel that the individual is a danger to society or the officers.

    Definitions of Search and Seizure

    When an officer is searching for something, he or she is looking for evidence of a crime. Officers are often searching in a place where a person has a reasonable expectation of privacy – such as the home or vehicle. When law enforcement takes possession of that person or illegal object, they have seized the evidence. In the instance of cannabis, officers can seize the contraband because it is prohibited by law.

    Exceptions to Search and Seizure Requirements for Search Warrants

    There are instances where officers could search and seize an area where you have a reasonable expectation of privacy. But, these exceptions are only allowed under specific circumstances, such as:

    • The property has been abandoned
    • There is a community caretaker
    • There is third party consent to a search
    • There are exigent circumstances – meaning that a search could prevent an emergency situation
    • The cannabis is in plain view
    • The officers intended to arrest the individual; therefore, they were searching him or her as part of that arrest

    Were You Arrested Based on the Smell of Cannabis? Contact a New Mexico Drug Crimes Attorney

    If you have been arrested based simply on the smell of cannabis, or an officer has justified the search based on smell, you still have defense options to explore. In many cases, your fourth amendment rights are violated; therefore, the evidence collected against you could be excluded from the case. To explore your legal options, contact the defense team at New Mexico Criminal Law Offices. We are here to help you, because clearing your name is our number one priority. Schedule a free case evaluation now at 505-375-4661 or fill out our online contact form with your drug case questions.