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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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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