Split Noted: Does the Odor of Marijuana in the Passenger Compartment of a Vehicle Create Probable Cause to Search the Entire Vehicle?

Per Com. v. Garden, 2008 WL 835961 (Mass. Apr. 1, 2008)

A confidential informant told police that ‘Bubs’ was involved in a shooting and could now be found with three other men in a white car. ‘Bubs’ was a known alias of Leroy Wells, a felon with a history of violent crimes. Two hours later, officers saw Leroy Wells and two other men enter a black car as passengers. A registry search revealed that the owner of that car (a female) had a suspended license, giving the officers a reason to pull the car over. As the officer approached the car, they were able to see the driver – defendant Garden – was a man, removing the probable cause.

The officer, however, smelled burnt marijuana coming from the clothes of the occupants of the car. The police frisked Garden and Wells, and searched the passenger compartment of the car. No contraband was found. The officer asked the defendant for permission to search the trunk, and Garden said no. Nevertheless, the officer did unlock the trunk and discovered three pistols and two bags of marijuana.

The Massachusetts Supreme Judicial Court considers whether opening the trunk exceeded the permissible scope of a search justified by the odor of burnt marijuana coming from the clothes of passengers. They hold, in a 4-3 opinion, that the officer could not reasonably have believed that the smell was coming from the trunk – “it is unreasonable to believe people smoke marijuana in the trunks of cars.” Thus the search lacked any probable cause, and all of the evidence must be suppressed.

The dissenting judges note that the circuits are split on this issue. The CA 5 permits searches of the entire vehicle, whereas the CA 10 limits the search to the location in which the odor was detected. The states are also split, but a clear majority permits the search of the entire vehicle. Compare 114 A.L.R.5th 173 § 7 with id. § 6. Although this decision does not explicitly rely on the Massachusetts Constitution as an independent state ground, the heavy citation of Massachusetts precedent would seem to insulate it from any review.

Repeat readers of this blog might have noticed that my discussion of the decisions of state courts of last resort has had a decidedly northeastern flavor. That should not be taken as any indication of my location, but rather simply a reflection of the results of my search algorithm.