Current Events, Legal

Iowa Supreme Court: Marijuana Smell Still May Be Probable Cause for Subsequent Search

Yesterday’s decision in the Iowa Supreme Court case Watts v. Iowa was discussed on the G R L Law Blog:

Smell of Marijuana and Probable Cause
It is not uncommon for police officers to claim that they “immediately detected a strong odor of marijuana” coming from the vehicle, apartment or house. They then use that in an attempt to justify a subsequent search of the car or residence. This begs the question: does the smell of marijuana, standing alone, create probable cause to search? The answer is “yes but …”

According to the Iowa Supreme Court’s recent decision in State v. Watts, the odor of marijuana, burnt or fresh, may create probable cause to search a particular location so long as a few requirements are met.

Iowa Supreme Court: If you smell like weed, you will get searched.

Yesterday’s decision from the Iowa Supreme Court differs markedly from a recent Massachusetts Supreme Judicial Court decision. The court ruled in Massachusetts earlier this year that the mere smell of marijuana no longer justifies a police search. Since Massachusetts has decriminalized marijuana, evidence of non-criminal marijuana possession does not authorize police searches.

In Iowa, however, marijuana is still completely illegal, despite the Iowa Board of Pharmacy’s 2010 recommendation to the Legislature that natural medical marijuana should be legalized for those who need it. However, in order for the smell of marijuana to constitute probable cause for a search in Iowa, specific elements must be met. The Iowa Supreme Court explained when the smell of marijuana constitutes probable cause in yesterday’s decision:

“Probable cause to search exists if, under the totality of the circumstances, “a person of reasonable prudence would believe that evidence of a crime might be located on the premises to be searched.” State v. Davis, 679 N.W.2d 651, 656 (Iowa 2004).”

“If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.
Johnson v. United States, 333 U.S. 10, 13, 68 S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948).”

If your friend smells like marijuana when the police pull you over, prepare to be searched.

What that means is this: the officer detecting the illegal odor must be qualified to identify the odor, and the odor detected must be illegal.

In the case the Supreme Court ruled on yesterday, the defendant’s apartment smelled strongly of marijuana odor, which gave the authors probable cause to search the apartment. Until the constitutional right to marijuana becomes recognized here in Iowa, the smell of burnt or raw marijuana will continue to provide probable cause for a search.

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