The blue lights come on. You stop the car and wait for the police with license and registration in hand. There is an odor of marijuana emanating from the interior of the car, you know it and the police will know it. What does it mean and what happens next?
It depends on whether you find yourself in Massachusetts or New Hampshire. A recent change in Massachusetts law de-criminalized, but did not legalize, the possession of less than one (1) ounce of marijuana. Massachusetts General Laws Chapter 94C, section 32L enacted December 4, 2008. Possession of less than one (1) ounce of marijuana is now treated as a civil infraction. Violators will lose their stash to the police and be handed a civil citation requiring payment of a one hundred dollar ($100) assessment to the municipality where the civil offense occurred. Previously, possession of any amount of marijuana was treated as a misdemeanor criminal offense with a potential jail sentence upon conviction and a mandatory one (1) year loss of license through the Registry of Motor Vehicles.
More importantly, in Massachusetts, the mere presence of “an odor of burnt marijuana”, without more, cannot reasonably provide police with suspicion of criminal activity to justify an exit order or search of the car after this change in the law. So held the Massachusetts Supreme Judicial Court in Commonwealth v. Cruz, 459 Mass 459 (2011). Now, if the police detect an odor of marijuana emanating from your person or your vehicle during a traffic stop, without more, they cannot detain you, search you, or arrest you. If there is evidence of other crimes, including operating while impaired by drugs or alcohol, the police are still justified in detaining the driver to further investigate. Erratic or dangerous driving, bloodshot glassy eyes, slurred, thick tongued speech, confusion or disorientation answering questions, slow reactions, difficulty retrieving license and registration, are all alleged indicia of impairment that police officers are trained to look for during any traffic stop.
Interestingly, the “odor of marijuana” emanating from a vehicle in New Hampshire does give rise to probable cause that a criminal offense is occurring. But, in the “Live Free or Die” State, the New Hampshire Supreme Court has not adopted the Federal Rule for the “automobile exception” to the warrant requirement. State v. Sterndale. Under Federal Law a warrantless search of a motor vehicle is permitted when police have “probable cause to believe that a motor vehicle on a public way contains contraband or evidence of a crime, and exigent circumstances make obtaining a warrant impracticable. Carroll v. United States, 267 U.S. 132, 149 (1925). Exigent circumstances are created by the inherently mobile status of a vehicle.
Without the “automobile exception” to the warrant requirement, New Hampshire law enforcement can only briefly hold your vehicle for a K-9 sniff search and then apply to a Judge for a search warrant for your car. Without your consent, a police officer in New Hampshire does not have legal grounds to search your vehicle without a warrant based only on the “odor of marijuana.” Interestingly, almost every consent to search a motor vehicle obtained roadside by the police in New Hampshire is preceded by the officer’s warning that if you do not consent to the search he/she will “hold your vehicle, call the K-9 unit, and then tow your vehicle while a warrant is applied for.” Again, if there is evidence of other criminal activity, or probable cause to arrest for any other offense, including OUI, DUI, DWI, the car in all likelihood will be seized and searched pursuant to an established inventory policy, before it is towed.