Search of Car

If the officer smells marijuana, raw or burnt, coming from the car, the officer is allowed to search the passenger compartment and all occupants of the car. But if an occupant of the car has a marijuana card, then the officer is not allowed to search the car. Therefore, the officer must ask if the occupants have a marijuana card before he searches. If the officer fails to ask this question then the search of the car is illegal even if nobody had a card. The law focuses upon proper police conduct and not if the police officer was right.

The officer is not allowed to search the trunk based solely upon the odor of marijuana. But if the officer finds illegal marijuana in the car, then he has probable cause to arrest the driver and a search of the trunk is justified as a “search incident to arrest”. This is allowed, even if the arrest of the driver has not happen until after the trunk is searched.

But if an officer asks the driver to step out of the car, and the officer smells marijuana coming from him, then the search for marijuana is limited to that person and not the car or other occupants. But then again, if the officer finds drugs on the driver when he stepped out of the car, then the officer may search the passenger compartment and the trunk as a “search incident to an arrest” – even if the arrest has not happened yet.

Under the plain view doctrine, the officer is allowed to seize drugs or contraband seen in the car if the illegal nature of the item is immediately apparent upon the first view of it. So if an officer sees leafy flakes on the car seat but does not know it is marijuana shake until he enters the car and picks it up, then that search is illegal because the officer did not know for sure that the item was marijuana while standing outside the car.

Officer’s think that if they suspect that something is illegal, then they are allowed to go into the car and investigate under the plain view doctrine. Not so. The search is valid only when the officer is standing outside the car and knows for sure what it is without any further investigation. The plain view search is the most abused justification for a search.

The same rule goes for pills or white chunks seen on the floor. The officer cannot know what type of pill it is from outside the car or if the white chunk is a broken off tic-tac. In this case, the entry of the officer into the car to investigate his suspicion is an illegal search.

The same rules apply to what has become known as a “plain feel” search. This usually happens when the officer “pats down” the driver down for weapons and feels a cigarette package or baggie in the pocket. Most of the time the officer seizes this item under the “Plain Feel” doctrine. But most of the time, this is an illegal search because the officer did not know for sure what it was in the pocket upon the first pat. Rather, the officer had to pat it again or squeeze it for him to then conclude that the item was illegal drugs. If the officer admits to squeezing the package after he patted it, then the judge should suppress the evidence found because the illegal nature of the package was not known upon the first contact with it.