Friday, January 24, 2014

Is stinking of pot enough of a reason for police to search someone’s car?

The Nebraska Supreme Court didn’t quite come up with an answer today, but the case that started in Aurora, Neb. gives police a little more leeway. 

In 2011 Roger Dalland and his girlfriend were at the law enforcement center at Aurora talking to police about something completely unrelated to drugs.  The police couldn’t help but notice Dalland’s clothes reeked of marijuana smoke.  (As the Court of Appeals judge summarized it: “Given that the odor remained on Dalland the entire time he was at the law enforcement center, we can ascertain that the odor lingered on his person for a substantial period of time.”)   

A search of his car out in the parking lot turned up syringes that later tested positive for meth.  Arrested, convicted, and sent to jail, Dalland appealed claiming the smell of pot is not reason enough to trigger the search of his vehicle, so the needles never should have been allowed in as evidence. 

The Court of Appeals took Dalland’s side.  The judge wrote:  “while Dalland may have encountered it in his vehicle, he may have encountered it any number of ways and in any number of locations throughout the day.”

In today’s ruling, the Nebraska justices did not come flat out and say the smell test was grounds for a search.  (Read the whole opinion here.) There was also testimony from an Aurora police officer, Cpl. Chad Mertz, who said he did the search only after following Dalland out to his car.   

There were conflicting versions of whether Mertz was aware there were syringes to be found before the search (giving plenty of probable cause for the search) or after he’d found them (which means the pot smell was the main reason to poke around car.)

By accepting Mertz’s assurance that he did the search because of the needles AND the pot smell, the Nebraska Supreme Court said the search of Dalland was legal and his conviction stands. 

“Because we find probable cause for the search based on the combined facts that Dalland smelled of burnt marijuana and that he admitted prior to the search of his vehicle to having needles in the vehicle, we do not reach the question whether the odor of marijuana emanating from Dalland was sufficient to establish probable cause.”

The Supreme Court’s closing take on the case seems to leave unresolved the most interesting question:  If you show up at the police department smelling like pot, is that reason enough to bring on a search?

NET News did quite a bit of reporting on the new legal landscape involving marijuana.  Check out our documentary Marijuana Crossroads and links to our radio stories HERE.