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Warrantless search based on smell does not violated 4th Amendment

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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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  • ditto
    Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.
  • Harmless plant
    Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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