MARIJUANA'S SMELL NOW CAUSE FOR SEARCH

Police in Ohio now can rely on their noses to justify searching a vehicle
and its occupants without a warrant.

The Ohio Supreme Court yesterday unanimously ruled that the smell of
marijuana alone was enough to establish probable cause for a warrantless
search in a case involving a Pickerington man stopped by a state trooper
after running a red light on Rt. 33 in Lancaster.

The decision establishes a so-called "plain-smell'' exception to the
requirement that law-enforcement officers obtain a warrant before
conducting a search. Before, the only exception dealing with an officer's
senses was the "plain-sight'' rule, which allows them to search vehicles
without a warrant when evidence of illegal activity is visible.

"If the smell of marijuana, as detected by a person who is qualified to
recognize the odor, is the sole circumstance, this is sufficient to
establish probable cause. There need be no additional factors to
corroborate the suspicion of the presence of marijuana,'' Justice Evelyn
Lundberg Stratton wrote.

She noted that Patrol Sgt. Jeff Greene, who stopped Christopher M. Moore in
February 1999, was trained and experienced in detecting the smell of
marijuana. The ruling appears to apply only to marijuana, which Stratton
said has a distinct odor.

In addition, she wrote, "The inherent mobility of the automobile created a
danger that the contraband would be removed before a warrant (could) be
issued. . . . A warrantless search is also justified if there is imminent
danger that evidence will be lost or destroyed if a search is not
immediately conducted.''

According to court records, Greene said he detected a strong odor of burnt
marijuana emanating from the car after Moore rolled down his window. After
asking Moore to step out, Greene found rolling papers in Moore's pocket and
a burnt marijuana cigarette in the car's ashtray.

Most courts in other states that have considered similar cases have held
that the smell of marijuana alone justifies a warrantless search for
evidence of the drug, Stratton said.

In a separate opinion, Justice Paul E. Pfeifer concurred but said he thinks
there should be a distinction between smelling marijuana emanating from a
car and smelling it on a person.

"The search of the car here was reasonable because given the smell of
marijuana smoke emanating from the car there was probable cause to believe
that a crime was occurring or had occurred in the car. The smell of
marijuana smoke on a person is entirely different; it provides probable
cause that marijuana has been smoked, not that the person smoked it,''
Pfeifer wrote.

Moore's attorney, Scott Wood, predicted that the ruling will subject many
law-abiding motorists to warrantless searches. He said that he will appeal
the decision to the U.S. Supreme Court.

"I'm not disappointed because it advances the fight against drugs,'' Wood
said. "But I am disappointed because I think it gives an officer too much
leeway to invade someone's privacy.

"The odor of anything is transient. It travels; it attaches. If my
16-year-old uses my car and I go out and use it the next day and there is a
smell, I and everyone else in the vehicle may be subject to a search. . . .
There are some law-enforcement officers who will use this to conduct a
search if they don't like the way a person looks or acts.''

Wood argued to the court that warrantless searches should be based on not
only smell but also some other tangible evidence.

But David A. Trimmer, an assistant prosecutor for the city of Lancaster,
said the ruling allows officers to use all of their senses to establish
probable cause.

"Certainly, if an officer sees contraband that gives him probable cause or
if he hears something while walking up to the car like a passenger saying,
'You better hide the stuff,' now this just takes another sense and gives it
justification,'' Trimmer said.

The decision means Moore must face charges of possession of marijuana and
possession of drug paraphernalia. Each carries a maximum sentence of 30
days in jail, a $250 fine and mandatory suspension of the driver's license.

A Lancaster Municipal Court judge had declared the search illegal and
thrown out the charge. A Fairfield County appeals court overturned that
decision, but Moore's trial was put on hold while the Supreme Court
reviewed the case.