Let's Make Some "Scents" of our Fourth Amendment Rights: The Discriminatory Truths Behind Using The Mere Smell of Burnt Marijuana as Probable Cause to Search A Vehicle

Authors

Alessandra Dumenigo

First Page

283

Document Type

Article

Abstract

This Comment addresses the negative effects that have resulted and will continue to result if police officers are encouraged by jurisprudence to conduct a warrantless search of an entire vehicle based on the smell of burnt marijuana. Warrantless searches of an entire vehicle based merely on the smell of burnt marijuana grant officers unlimited power that will likely result in police misconduct, an increase in racially profiled traffic stops, and a distrust between police officers and the Black community amid the nationwide outrage over the death of George Floyd. Part II of this Comment discusses the history of the Fourth Amendment. In particular, it will discuss the vehicle exception to the search warrant requirement. Part II will also review the current circuit split among the federal courts regarding whether the smell of burnt marijuana constitutes probable cause to conduct a warrantless search of an entire vehicle. Part III examines the prevalence of discriminatory traffic stops and the shortcomings of the plain smell doctrine. Finally, Part IV offers a judicial and legislative solution to the circuit split. The Supreme Court should grant certiorari and hold that the smell of burnt marijuana, alone, emanating from a vehicle does not establish probable cause to conduct a warrantless search of an entire vehicle because it violates the Fourth Amendment and is the type of warrantless search that the Framers of the Constitution intended to avoid. The states can also address the issue by enacting laws that reduce traffic stops and limit the actions an officer can take during a traffic stop. Under these judicial and legislative changes, police officers will be made aware that they may not use the smell of burnt marijuana as a justification for conducting warrantless searches.

Recommended Citation

Alessandra Dumenigo, Let's Make Some "Scents" of our Fourth Amendment Rights: The Discriminatory Truths Behind Using The Mere Smell of Burnt Marijuana as Probable Cause to Search A Vehicle, 33 St. Thomas L. Rev. 283 (2021).
Available at: https://scholarship.stu.edu/stlr/vol33/iss2/6