LET'S MAKE SOME 'SCENTS' OF OUR FOURTH AMENDMENT RIGHTS: THE DISCRIMINATORY TRUTHS BEHIND USING THE MERE SMELL OF BURNT MARIJUANA AS PROBABLE CAUSE TO SEARCH A VEHICLE.

AuthorDumenigo, Alessandra
  1. INTRODUCTION

    On March 13, 2018, Jason Serrano, who was recovering from abdominal surgery at the time, was riding in the passenger seat of his friend's car when they were pulled over by New York Police Department Officer Kyle Erickson for a broken taillight. (1) Officer Erickson approached the car and claimed that he smelled marijuana emanating from the vehicle. (2) What began as a routine traffic stop turned to a pretext traffic stop during which Officer Erickson ordered Serrano and his friend to step out of the vehicle so that he may conduct a search. (3) In response to Officer Erickson's request, Serrano lifted up his shirt and showed Officer Erickson his surgical wound, advising him that he could "barely move." (4) Officer Erickson, showing complete indifference to Serrano's poor physical state, pushed Serrano to the ground and handcuffed him. (5) After placing Serrano under arrest, Officer Erickson conducted a search of Serrano and the entire vehicle, but did not find any drugs. (6) A video from Officer Erickson's body cam shows Officer Erickson's visible frustration from being unable to find anything, and audio captures Officer Erickson saying, "[w]e gotta find something." (7) Towards the end of the search Officer Erickson is shown planting a marijuana bud in the vehicle. (8) Officer Erickson then ends the search by fist-bumping his partner in celebration. (9)

    Sadly, this was not the first time Officer Erickson used the "smell of marijuana" as a justification for conducting a warrantless search of a vehicle, and this was not an isolated incident. (10) This type of police misconduct and justification for a warrantless search based on the "smell" of burnt marijuana has become a pattern in the United States. (11) Although the Fourth Amendment protects individuals from warrantless searches, the Supreme Court has held that a vehicle search is an exception. (12) If the police officer has probable cause to believe "the vehicle contains contraband or other evidence of a crime," the officer may conduct a vehicle search without a warrant. (13) Oftentimes police officers cite the smell of burnt marijuana as probable cause in order to justify a warrantless search of an entire vehicle. (14) The Supreme Court lacks a definitive statement regarding whether the smell of burnt marijuana emanating from a vehicle is sufficient probable cause to conduct a warrantless search of an entire vehicle. (15) As a result, federal circuit courts are split on the issue. (16)

    This Comment addresses the negative effects that have resulted and will continue to result if police officers are encouraged by jurisprudence to conduct a warrantless search of an entire vehicle based on the smell of burnt marijuana. (17) Warrantless searches of an entire vehicle based merely on the smell of burnt marijuana grant officers unlimited power that will likely result in police misconduct, an increase in racially profiled traffic stops, and a distrust between police officers and the Black community amid the nationwide outrage over the death of George Floyd. (18) Part II of this Comment discusses the history of the Fourth Amendment. (19) In particular, it will discuss the vehicle exception to the search warrant requirement. (20) Part II will also review the current circuit split among the federal courts regarding whether the smell of burnt marijuana constitutes probable cause to conduct a warrantless search of an entire vehicle. (21) Part III examines the prevalence of discriminatory traffic stops and the shortcomings of the plain smell doctrine. (22)

    Finally, Part IV offers a judicial and legislative solution to the circuit split. (23) The Supreme Court should grant certiorari and hold that the smell of burnt marijuana, alone, emanating from a vehicle does not establish probable cause to conduct a warrantless search of an entire vehicle because it violates the Fourth Amendment and is the type of warrantless search that the Framers of the Constitution intended to avoid. (24) The states can also address the issue by enacting laws that reduce traffic stops and limit the actions an officer can take during a traffic stop. (25) Under these judicial and legislative changes, police officers will be made aware that they may not use the smell of burnt marijuana as a justification for conducting warrantless searches. (26)

  2. BACKGROUND

    1. HISTORY OF THE FOURTH AMENDMENT

      The Fourth Amendment guarantees people the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (27) In order to comply with the requirements set forth by the Fourth Amendment, a police officer must have probable cause and a valid warrant to constitute a "reasonable" search and seizure of an individual or an individual's possessions. (28) The Supreme Court has defined probable cause as "knowledge" that is "sufficient to warrant a prudent person to conclude that the suspect has committed, is committing, or was about to commit a crime." (29)

      To obtain a valid warrant, a police officer must provide a magistrate with an affidavit that details sufficient information and probable cause. (30) If the magistrate believes the affidavit establishes probable cause to conduct a search, then the warrant will be issued. (31) Once a valid warrant is issued, police officers may lawfully execute the warrant. (32) If a valid warrant is not issued, then officers cannot conduct a search because warrantless searches and seizures are deemed to be "per se unreasonable" and a violation of an individual's Fourth Amendment rights. (33) However, not every search must be made pursuant to a valid warrant. (34)

    2. THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT

      The Supreme Court has held that there are certain exceptions to the warrant requirement, and a vehicle is one such exception. (35) As recognized in Carroll v. United States, and consistently throughout other cases, the Court has maintained that vehicles are different from homes and other stationary structures because vehicles can be quickly moved, which may make it impracticable to require a warrant. (36) Accordingly, a vehicle search conducted by a police officer without a warrant may be deemed reasonable if the police officer has probable cause to believe "the vehicle contains contraband or other evidence of a crime." (37)

    3. THE PLAIN SMELL DOCTRINE

      Under the plain smell doctrine, the odor of contraband can provide probable cause to justify a warrantless search. (38) Consequently, an officer who smells illegal drugs inside of a vehicle may conduct a warrantless vehicle search because the odor provides the officer with probable cause to reasonably believe that the individual inside of the vehicle is committing or has committed a crime. (39) Many courts have adopted the plain smell doctrine and view it as "a logical extension of, and analogous to, the plain view doctrine." (40) Although the Supreme Court has recognized the plain view doctrine in Coolidge v. New Hampshire, and has extended it to the plain feel doctrine, the Court has yet to decide on the extension of it to the plain smell doctrine. (41)

    4. FEDERAL COURT CASES INVOLVING THE SMELL OF MARIJUANA EMANATING FROM A VEHICLE

      Because the Supreme Court lacks a definitive statement regarding the plain smell doctrine, federal circuits are split on the following issue: whether the smell of burnt marijuana emanating from a vehicle establishes sufficient probable cause to search an entire vehicle without a warrant. (42)

      i. Smell of burnt marijuana alone is probable cause

      The Fifth and Eighth Circuits have held that the mere smell of burnt marijuana emanating from a vehicle establishes probable cause to search an entire vehicle without a warrant. (43) In United States v. McSween, the defendant appealed to the Fifth Circuit and argued that the district court erred in denying his motion to suppress drugs that had been seized from his vehicle's hatchback because the officer did not have probable cause to search the entire vehicle. (44) The vehicle search initially began as a routine traffic stop after McSween was pulled over for speeding. (45) The officer was made aware through a computer search that McSween had previously been arrested on narcotic charges, and after gathering this information, the officer asked McSween if he could conduct a search of the vehicle. (46) While searching the passenger area of the vehicle, one of the officers noticed the smell of burnt marijuana emanating from the ashtray. (47) Yet, the officer never discovered any marijuana in the ashtray or anywhere else inside of the vehicle. (48) Next, the officer opened the hood of the vehicle where he discovered a brown plastic bag that contained marijuana. (49)

      McSween argued that "even if the odor of marihuana gave [the officer] probable cause to search, the search should have been limited to the passenger area, where [the officer] detected the smell." (50) However, the court disagreed with McSween and concluded that "the smell of marihuana alone may be ground enough for a finding of probable cause, as [the] Court has held many times." (51) In reaching its decision, the Court acknowledged the automobile exception to the warrant requirement and held that the officer's detection of the odor of burnt marijuana provided probable cause to believe that marijuana could be concealed under the hood of the vehicle. (52)

      ii. Smell of burnt marijuana alone is not probable cause

      In contrast to the Fifth and Eighth Circuits, the Tenth Circuit has held that the mere smell of burnt marijuana emanating from a vehicle alone does not establish probable cause to conduct a warrantless search of an entire vehicle. (53) In United States v. Nielsen, the district court denied Nielsen's motion to suppress cocaine that had been obtained from the trunk of his vehicle during a warrantless search. (54) On appeal, Nielsen argued that the district court erred in denying his motion because the officer's assertion...

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