IS MARIJUANA'S ODOR ENOUGH TO WARRANT A SEARCH?

A whiff of marijuana was all one State Highway Patrol trooper said he
needed to search a motorist and his car for drugs. It will be up to
the Ohio Supreme Court to decide whether that's enough.

Justices yesterday heard arguments concerning the legality of a search
conducted by the trooper, who said he smelled marijuana during a
traffic stop in Lancaster.

On Feb. 28, 1999, patrol Sgt. Jeff Green pulled over Christopher M.
Moore for running a red light.

Because of the strong odor that Green said he smelled, he searched
Moore outside his car and found drug paraphernalia in his coat. Inside
the car, Green found a burned marijuana cigarette in the ashtray.

He had no search warrant.

Moore's attorney filed a motion to suppress the evidence from the
search. The motion was granted by the Lancaster Municipal Court, and
Moore was acquitted of possession of marijuana and drug
paraphernalia.

The decision was reversed by a Fairfield County appeals court. It said
a trained officer can rely on his sense of smell as probable cause to
search a car for marijuana without a warrant.

Attorney Scott Wood argued that the trooper needed more-tangible
evidence to conduct the search.

The municipal court ruled that there is no "plain smell'' exception to
a person's constitutional protection against unreasonable search.

"The issue is whether the odor of burned marijuana alone, without any
other tangible evidence of drug use, provides all the reason for the
state to search a person or that person's motor vehicle under the 4th
Amendment of the United States and its Ohio counterpart,'' Wood told
the justices.

Justice Francis E. Sweeney asked Wood whether there was any evidence
to cast doubt on what the trooper smelled.

"Sgt. Green did testify that the odor was distinctive and strengthened
as he approached the car,'' Wood told Sweeney. "And he could not tell
if it was coming out of the car or the person.''

Chief Justice Thomas J. Moyer asked whether odor alone was becoming a
trend for probable cause in marijuana searches.

"For vehicles, there is a trend in federal courts and state courts
that odor alone is sufficient,'' Wood said.

The smell-only standard is not as strong a trend in searches involving
people. He said that would constitute a greater invasion of privacy.

He cited other court jurisdictions, such as in Michigan, where the
smell of marijuana is just one factor in search cases involving vehicles.

Wood argued that because smoke can cling to clothing, more evidence is
needed before a warrantless search is conducted.

"It is precisely for this reason,'' Wood wrote in his legal papers,
"the court should be even more cautious when basing probable cause on
a smell. By requiring the officer to use smell as one factor . . . it
protects against unreasonable search and seizures.''

David Trimmer, an assistant city prosecutor in Lancaster, argued that
Green knows the scent of marijuana, and because of his training in its
detection, he met the probable-cause standard for a search without a
warrant.

"Nothing else smells like marijuana,'' Trimmer wrote in court papers.
"It has a very distinct odor.''