In the case of Commonwealth v. Overmyer, the Massachusetts Supreme Judicial Court considered whether the smell of ‘unburnt marijuana’ provides police officers with probable cause to believe there is more than (the legal) one ounce to justify a search of the car without a search warrant. The court ruled that, no, the mere smell of unburnt marijuana does NOT justify a search.
In this case, police officers responded to a motor vehicle accident. On scene, the officers smelled “a very strong odor of unburnt marijuana near” the defendant’s car. In response to questioning by the police officers, the defendant admitted that marijuana was present in the car and gave the keys to the glove compartment to the police. Inside, there was a “fat bag” of marijuana. Because the odor of unburnt marijuana persisted, a further search was conducted and more marijuana in a backpack in the backseat.
As a result, this defendant was charged with possession with intent to distribute a class D substance and school zone violation.
In challenging the validity of the search of the car prior to trial, the motion judge ruled that once the marijuana was recovered from the glove compartment, the additional persistent smell of unburnt marijuana did not justify a further search of the back seat area and of the defendant’s backpack without a warrant.
The Massachusetts Supreme Court agreed, holding that since the law concerning marijuana was reclassified (and where it is no longer a crime to possess an ounce or less of marijuana) ‘the odor of unburnt marijuana alone cannot reasonably provide suspicion of criminal activity.’
Interestingly, the court further expanded on officers’ characterizations of the “strong” or “very strong’ smell of unburnt marijuana, describing these characterizations as inherently subjective. The court additional called into question whether a police officer can somehow identity, simply by “odor”, the presence and identity of a particular controlled substance and its weight. Ultimately, the SJC held stated that “…we are not confident…that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine.”