Is the Smell of Marijuana Probable Cause in SC?

by | Sep 12, 2019 | Criminal Defense, Marijuana Prohibition |

Is the smell of marijuana probable cause in SC? 

As a court in New York noted earlier this year, the smell of marijuana is always probable cause to search and police often take advantage of this – routinely lying about the “overwhelming odor of marijuana” any time they search someone’s car and find contraband. 

The smell of marijuana is probable cause in SC, even when it is obvious to everyone that the police are lying – judges in SC will not call a police officer a liar. In one case, the SC Supreme Court found that the officer’s obvious lie that he smelled marijuana was probable cause to search where his drug dog did not smell marijuana

SC courts are still finding that the smell of marijuana is probable to search, even though hemp is now legal in the state. Can the odor of something that is legal be probable cause for the officer to search? 

I suppose it can – if the non-existent odor of non-existent marijuana can be probable cause, pretty much anything goes for SC judges when it comes to marijuana and probable cause…

Is the Smell of Marijuana Probable Cause in SC?

Until SC’s appellate courts come to their senses, acknowledge when police officers lie on the witness stand, and recognize that the smell of a legal substance (hemp) is not probable cause to search a vehicle, an officer’s claim that he or she smelled marijuana, no matter how unbelievable, is probable cause to search in SC. 

State v. Morris – No Marijuana Found, Drug Dog Did Not Alert

In State v. Morris, the SC Supreme Court found that there was probable cause for an officer to search a vehicle where the officer testified that he smelled marijuana. 

Although the officer’s drug dog (the dog’s name is Justice) did not alert on the vehicle, the Supreme Court apparently credited this officer’s amazing olfactory senses, acknowledging that sometimes police officers’ noses are just better trained than a German shepherd’s…

The officer searched both the driver and passenger, with their consent, and found no contraband. Then the officer asked for permission to search the car and the driver said no:

Vinesett and Gibson asked Nichols for his consent to search the vehicle, which Nichols refused, stating there was no contraband. Gibson then escorted Justice around the exterior of the vehicle twice; however, Justice did not alert at any point. Vinesett then conducted a search of the vehicle…

The officer did not find any contraband on either driver or passenger. He then walked the drug dog around the car – why? Because if the drug dog alerts, that’s probable cause. But the drug dog did not alert, aaaand the officer went ahead and searched the car. Why? Because if the officer says “I smell marijuana” it’s probable cause – all police officers know this. 

Why didn’t the drug dog alert even though the officer’s super-nose smelled weed? 

When asked about the K-9 search, Vinesett conceded this was a fair indicator that no drugs were present, but stated Justice failed to keep his nose on the vehicle as he usually did during a search and instead frequently stopped to shake the water off, explaining he assumed Justice did not like being out in the rain.

To every prosecutor and defense attorney in the state of SC, the holding of this case was clear – no matter how ridiculous or how obvious the lie, when an officer says he or she smells marijuana, that is probable cause to search. 

Which pretty much gives every police officer (the ones who don’t mind bending the truth) carte blanche to search any vehicle at any time. Didn’t find anything? No harm no foul, go on your way. You will not be successful if you sue an officer for searching your vehicle. 

Find marijuana, other drugs, or guns? No problem, I had probable cause to search because I smelled marijuana. 

Is the Smell of Hemp Probable Cause in SC?

Industrial hemp with a THC content of .3% or less is no longer a controlled substance. If it is processed (dried, cured, and packaged as smokable hemp), it is now legal under both South Carolina and federal law. 

Hemp smells exactly like marijuana (it is marijuana, it’s just a strain of marijuana that cannot get you high). 

SC police have no way to test hemp (or marijuana) to determine whether its THC content is greater than .3%. Despite this, SC police are still arresting and charging people with marijuana possession for substances that they have no way of testing. 

The smell of hemp – a substance that is now legal under both state and federal law – cannot be probable cause to search a person’s vehicle. Finding a baggie with plant material that looks like hemp flower cannot be probable cause to arrest and charge a person with marijuana possession unless the police have some way to prove that the substance is marijuana and not hemp. 

To get a conviction for possession of marijuana, the state will have to bring a chemist to the trial who must not only 1) testify that they tested the substance and it was marijuana, but also 2) that they tested the THC content and it was greater than .3%. 

Prosecutors are not currently doing that anywhere in the state of SC – if you have been arrested or ticketed and charged with possession of marijuana, do not plead guilty. Do not pay a fine. Call a marijuana defense lawyer immediately

Is the Smell of Marijuana Probable Cause in Other States?

Other states are beginning to recognize the issues surrounding marijuana legalization, marijuana decriminalization, hemp legalization, and police officers who routinely lie about the odor of marijuana. 

Lying Police Officers

A judge in the Bronx issued an opinion this year recognizing how often police lie about the odor of marijuana to manufacture probable cause:

But in late July, a judge in the Bronx said in a scathing opinion that officers claim to smell marijuana so often that it strains credulity, and she called on judges across the state to stop letting police officers get away with lying about it.

“The time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop,” Judge April Newbauer wrote in a decision in a case involving a gun the police discovered in the car they had searched after claiming to have smelled marijuana. 

Decriminalized Marijuana

The Maryland Court of Appeals issued an opinion last year holding that the odor of marijuana is not probable cause to search anymore because Maryland has decriminalized small amounts of marijuana – possession of 10 grams or less is punishable by a fine only. As the Court said in the first line of the opinion:

“The times they are a-changin’.”

—Bob Dylan, The Times They Are a-Changin’ 

Legalized Marijuana

The Colorado Court of Appeals has held that drug dog alerts are no longer probable cause to search a vehicle unless the dog is trained not to alert to the smell of marijuana – because simple possession of marijuana is now legal, the odor of marijuana could indicate criminal activity or it could indicate activity that is legal (just as the odor of hemp in SC could indicate criminal activity or it could indicate activity that is legal). 

The odor of marijuana is not probable cause to search a vehicle in states that have legalized or decriminalized marijuana possession, just as the odor of hemp is not probable cause to search a vehicle in states that have legalized hemp possession…

SC Marijuana Defense Lawyers in Myrtle Beach

If you have been charged with marijuana possession or any drug offense in Myrtle Beach, SC, the SC marijuana defense lawyers at Coastal Law will investigate your case, challenge probable cause, negotiate a dismissal or other resolution that you agree with, or take your case to trial.

Call now at (843) 488-5000 or send a message through our website to speak with a Myrtle Beach marijuana defense attorney today.

Ready to Speak with an Attorney?

Contact Coastal Law to discuss your situation.

Get in Touch

Myrtle Beach

1104 North Oak Street
Myrtle Beach, SC 29577

Conway

1314 2nd Avenue
Conway, SC 29526

Charleston

231 King Street
Charleston, SC 29401

Columbia

1201 Main Street, Suite 1913
Columbia, SC 29201

Disclaimers:

** Please be aware that any result achieved on behalf of one client in one matter does not necessarily indicate similar results can be obtained for other clients.

** Clients may be responsible for costs in addition to attorney’s fees. In percentage based cases, fees are calculated prior to deducting costs.

** This website is meant to provide meaningful information, but does not create an attorney-client relationship. As each legal issue is unique, please consult with our firm prior to relying on any information found on this site.