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Warrantless search based on smell does not violated 4th Amendment

July 28, 2014

Despite the absence of danger to the public, the strong odor of raw marijuana provided the probable cause a police officer needed to conduct a warrantless search.

Ashley Bell appealed her conviction for Class A misdemeanor possession of marijuana on the grounds that the warrantless search of her person during a traffic stop violated her Fourth Amendment rights.

Bell was arrested after Indianapolis Metropolitan Police Officer Lorrie Phillips stopped the vehicle in which Bell was a passenger for an illegally displayed temporary license plate. As Bell was exiting the vehicle, the officer smelled raw marijuana. The officer then handcuffed Bell and gave her a patdown search which led to the discovery of 10 baggies of marijuana.

On appeal, Bell argued a patdown search is justified during an investigatory stop only when a police officer is concerned for his or her safety. The search is not to be used to discover evidence of a crime.   

The Court of Appeals agreed that Phillips had no reason to believe that Bell was armed and dangerous. However, the court noted one of the exceptions to the Fourth Amendment’s warrant requirement is a search incident to a lawful arrest.

The Court of Appeals then pointed to precedent which has allowed the odor of marijuana is enough to give probable cause for a warrantless search.

“We agree with the State’s argument that, like the smell of burnt marijuana, the smell of raw marijuana on a person is sufficient to provide probable cause that the person possesses marijuana,” Judge Terry Crone wrote for the court in Ashley Bell v. State of Indiana, 49A02-1312-CR-1026. “We note that the odor of raw marijuana indicates that it has not been smoked and therefore still may be in the defendant’s possession. As such, we conclude that Officer Phillips had probable cause to arrest Bell and conduct a search incident to arrest.”

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