Texas follows the doctrine of “Plain Smell,” and it is important that Texans, particularly drivers, understand what that means.
Although the laws on both medical and recreational marijuana are changing across the country, they have remained largely the same in Texas. In the Lone Star State, the only type of marijuana considered legal is medical marijuana. Additionally, it is only legal for those suffering from intractable epilepsy to use.
So, what are a person’s rights when an officer claims to smell marijuana on that person, or in his or her vicinity? Is this enough to warrant an arrest?
Fourth Amendment Rights
Under the Fourth Amendment, everyone in America has the right to be protected from unlawful searches and seizures. Generally speaking, this means that law enforcement must obtain a warrant, signed by a judge, before they can conduct a search. To obtain that warrant, law enforcement must believe several things. These include:
● The person to be searched committed a crime
● The crime was committed in the location to be searched
● Evidence related to a crime is present in the location to be searched
However, the protections of the Fourth Amendment are not all-encompassing. For example, while law enforcement would likely need to obtain a warrant to search someone’s home, the same is not true of the vehicle. The belief is that a person in a vehicle has ample time to flee the scene. As such, the law allows officers to skip the warrant requirement when pulling someone over in his or her vehicle.
The Plain Smell Doctrine and Probable Cause
Although law enforcement can pull over a vehicle and search it if they believe a crime was committed, drivers and those accused still have certain rights.
The first is that the officer must have cause to pull a person over. This includes violations such as running a stop sign, or a broken taillight on the vehicle. Officers cannot simply decide they suspect someone without reason and pull them over.
Additionally, after a driver has been pulled over, law enforcement must have probable cause the driver or someone else in the vehicle committed another crime. Under the plain smell doctrine, if an officer smelled marijuana in the vehicle, he or she may suspect someone in the vehicle of marijuana possession. In that case, the officer can search the vehicle or make an arrest.
When officers conduct a search or make an arrest under the plain smell doctrine, the smell does not need to be potent, or even fresh. The officer simply has to suspect that someone in the vehicle is in possession of marijuana. He or she can then search the vehicle without a warrant.
If there is no probable cause and an officer searches the car anyway, that search is considered unlawful.
Charged with a Crime? Call Our Austin Criminal Defense Attorneys
If you have been charged with marijuana possession, you face serious consequences under Texas law if convicted. At Granger and Mueller, PC, we are the Travis County criminal defense attorneys who can help. If your rights were violated during a search or arrest, we will work hard to have any evidence obtained from it thrown out of court. We will hold the courts and the prosecution accountable for upholding your rights, and build you a strong defense for your best chance of a successful outcome. Call us today at (512) 474-9999 or contact us online so we can get started on your case.