When police say they smell pot, they can search you. Lawmakers worry decriminalization won’t change that.

When police say they smell pot, they can search you. Lawmakers worry decriminalization won’t change that.
A police car in Richmond, Va. (Source: Ned Oliver/Virginia Mercury)

If police pull you over in Virginia and say they smell marijuana, they have probable cause to search your car without a warrant.

Some state senators, skeptical of what they view as an improbably high number of searches justified under such pretenses, want to make sure the practice ends under marijuana decriminalization legislation expected to pass this year.

“The ruse – well, that’s the wrong word – simply saying I smell marijuana gives them justification to search the entire car,” said Sen. Joe Morrissey, D-Richmond, a former criminal defense lawyer, who posited that nine times out of 10 police find nothing but the practice has been allowed to stand because only successful searches wind up before judges.

Morrissey is not alone in questioning police officers’ olfactory senses. The issue has been a long-running complaint among public defenders and defense lawyers both in Virginia and around the country. Last year, a New York judge grew so fed up with hearing the justification in court that she openly accused police of lying, writing in an opinion that “the time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop.”

Steve Benjamin, the special counsel to the Senate Judiciary Committee and a high-profile Richmond defense attorney, told senators hashing out the issue Thursday that he noticed a sudden spike in smell-of-marijuana searches 10 years ago.

The Virginia Mercury is a new, nonpartisan, nonprofit news organization covering Virginia government and policy.