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Criminal Law / Jul 31,2017

Drug charges may no longer be based on the smell of marijuana

Drivers in Colorado who were arrested after their cars were searched without search warrants but based on indications by K-9 officers that there were illegal items in the vehicles may be interested in a recent ruling of the Colorado Court of Appeals. Up to now, law enforcement was allowed to base vehicle searches purely on the presence of a smell of marijuana. However, the court ruled that a vehicle may not be searched, and drug charges filed solely on the basis of a smell of pot. The court’s decision follows the end of marijuana prohibition.

A three-judge panel said sniffer dogs are typically trained to identify the smells of heroin, cocaine, methamphetamine, Ecstacy and marijuana or cannabis. However, because the dogs cannot talk, police have no idea which of these smells were detected. It could be only marijuana, and because it is no longer a prohibited drug, the smell of it does not provide a lawful reason to search the vehicle. Only if other legitimate reasons exist for a search without a warrant may it be done.

This ruling followed an appeal of a man that was charged with possession of illegal drugs after a dog detected the presence of one of the five substances it was trained to identify. Although officers found a pipe that is typically used for smoking methamphetamine, the dog could not communicate that it detected the smell of meth, and the car was searched on a hunch. The judges said that individuals who are over the age of 21 are now allowed to use recreational marijuana, and they are entitled to their privacy while doing so. Searches based purely on the smell of pot will be a violation of that privacy.

Individuals in Colorado who are in similar situations after law enforcement carried out vehicle searches that were based entirely on the smell of marijuana detected by K-9 units may want to discuss their cases with an experienced criminal defense attorney. A lawyer can evaluate the drug charges that were filed, and the procedures followed at the time of the arrest. Based on that information, he or she can determine the most appropriate steps forward.

Source:, “Colorado Court Deems Weed Smell Insufficient Evidence for Car Search”, Jessica Leone, July 19, 2017

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