Once you’re talking about "an officer saw you weaving " , you aren’t talking about “odor alone” anymore, which is what @kayaker was talking about.
By statute smell of marijuana can’t be used for any justification in New Jersey. Luckily the new statute came into effect just before I lost my sense of smell.
I can testify to the smell moving with the person.
I live in a hi-rise and, on occasion, I get in an elevator with someone who reeks of pot. I am willing to bet they recently smoked but I cannot prove it. Maybe they are slovenly and smoked a week ago and never washed their clothes. I find that highly dubious though. They are otherwise clean people (hair is in order and clean, no BO, beard trimmed/clean shaven, clothes clean apart from the smell, etc).
I used to smoke pot (30+ years ago) and I smoked cigarettes (quit 10+ years ago). I can say the stink of smoke on me (be it tobacco or marijuana) was mild to non-existent. I know because my GF was a non-smoker and she would let me know if I was stinky (usually if I had been in a bar which was loaded with smokers). As a teen smoking pot I definitely did not reek of it when I came home and my parents were there.
So, if I were a cop and smelled pot on a driver, I would certainly suspect they were impaired (stoned). At the least I think it is reasonable suspicion and merits further investigation.
I wonder if this is because it is trivial for a cop to say, “I smelled pot” to generate reasonable cause to search anyone.
If they were proved wrong…eh…guess they were mistaken. Oops.
It’s also trivial for them the say, “I saw them weaving”.
These days I think there are cameras in the police cars. But sure, if there is no camera then it is just the cop’s word versus the driver and I am pretty sure the court will always take the cop’s word on it.
AFAIK there are no electronic noses to check.
No doubt, there are cops who lied and claimed to smell weed in order to search but that has nothing to do with the change in the law. Its because weed is legal (at least in NJ) and you can’t use the smell of a legal substance to conduct a warrantless search for that legal substance. And, to nitpick, its “probable cause” not “reasonable cause”.
Sorry, I conflated reasonable suspicion with probable cause.
Reasonable Suspicion
A police officer may have reasonable suspicion that a crime is being committed if based on all of the facts and circumstances of the situation, a reasonable police officer would have the same suspicion. The police officer does not need physical evidence in order to have reasonable suspicion. Instead, the presumption of reasonable suspicion is made based on the officer’s training, the circumstances of the situation, and what other officers would do in similar circumstances.
I don’t think that they are on all the time, and they only have a front field of view.
Right, but I’m talking about their excuse to pull you over in the first place, as well as using that as probable cause to suspect DWI.
No on both counts. Diabetics are known to sometimes have a fruity-alcohol-like breath due to their medical condition; doesn’t mean they’ve been drinking. And there are all sorts of ways for alcohol of various types to spill on people or in a vehicle that has nothing to do with anyone being impaired or drinking in the car.
In fact, my work vehicle is required due to Covid to have hand sanitizer in it. Because the bottle is over-sized it won’t fit in the cup holder so sits on the floor in the back. One day it tipped over and started leaking. That particular sanitizer was made by one of the breweries and has that nasty added boozy smell. 2 months later the vehicle still stinks like alcohol. One of my co-workers is very risk averse and sanitizes the steering wheel and door handles every time they get in/out; the smell can linger.
Weed does not have to stink through packaging. It’s mostly due to outside contamination that you can smell it. Properly packaged and handled you (people at least) won’t smell it; it’s just more work than most people are willing to do.
I’m a bit confused as to why any hint of any form of alcohol being present (slight wiff of smell, empty beer can in the back seat, bottle being within arm’s reach of the driver) is seen by most to be grounds for pulling someone out of a vehicle and starting an investigation, but at the same time some people think that a powerful wafting of weed smell coming from a car window must be given a pass just because it may be from a legal source. If I were a cop I’d want to know whether that smell is coming from Granny’s pain medication or from Cheech and Chong’s duffle bag.
I hear people over and over again saying “weed is a legal substance” and apparently thinking that therefore they will always be home free. Well is alcohol is a legal substance too, but there are all sorts of illegal forms/amounts/uses of it in a vehicle that aren’t. So don’t be surprised if an officer wants to find out if the weed smell coming from your car window is lawful; it isn’t automatically so.
I was thinking they pulled you over for speeding or some other traffic violation and then decide to escalate it.
This was my thought. Pot or alcohol, does the existence of an impaired driver justify a search of the vehicle? In Canada, the law is “blood alcohol over 0.08” and they administer a breathalyzer if it is suspected you are impaired. (Illegal to refuse a request). What justification is needed for searching for an open alcohol container? (I recall something about there being a similar test for marijuana intoxication)
Does the impaired driver automatically give the police a justification to search the vehicle?
How about when I’m the designated driver? Obviously the vehicle will smell like alcohol with 3 other (intoxicated) passengers. That does not automatically mean open liquor.
(To be fair, there is also the charge “impaired driving of a vehicle” which does not require proof of blood alcohol level - but the judge is obviously going to ask why this test is missing.)
That is factually incorrect. It’s not how our courts work.
However, it is now the defendant’s job to prove the policeman was lying or mistaken in his testimony. The policeman does not have to prove - beyond his testimony - that he smelled alcohol. Only absence of corroborating evidence could call his testimony into question, or some indication he is untrustworthy.
(I.e. similar to “He was weaving” but dashcam does not show it.)
It’s because marijuana is now legal so it’s not evidence of any crime. Searching for what, a legal substance?
It’s why I stop replying to questions dealing with legal procedures. It’s inevitable it will degrade to “the cops just do what they want anyway.”
Yeah, there is. Police are judged on their performance, and the Captain will not like a string of “oopsies”. Nor is there any upside to violating a citizens rights. Sure, there are rogue cops and racist cops and bad cops, just like any job. And a lot of “oopsie” or bad arrests without convictions, plus citizen and lawyer complaints? That is going to ruin your career, and could lead to charges.
That is not enough evidence for a conviction.
But is it justification for a search, which then uncovers evidence for another charge which will stick?
Some of the cases that make it to the US Supreme Court basically boiled down to “for reason X the police searched and found Y” where Y is something like an unregistered weapon under the seat, or a brick of cocaine in the trunk.
Then the question becomes “was X reasonable grounds to search the car without consent?” Sometimes yes, sometimes no.
Is alcohol on the driver’s breath grounds to search?
Is the smell of marijuana grounds? (It seems not in some cases, places)
Is the driver’s apparent impairment - in the eyes of the officer - grounds for a search?
If evidence then shows the impairment claim was incorrect, is the search and all discovered evidence inadmissible?
If there was no effort to validate the impairment claim, is the evidence inadmissible?
Details, details…
And police in those police cars that shut the cameras off.
Unless you are part of the LAPD, which is rife with gangs.