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Defendant was ordered out of the vehicle because the officer smelled marijuana.
Because the validity of a warrantless search is determined with the same standard that a magistrate judge is required to consider for a search warrant, which is to authorize the officer’s use of the evidence in a criminal case, the warrantless search of the vehicle for an amount that constitutes a civil infraction is improper.
Before November 2008, Massachusetts has held that odor of marijuana alone is sufficient to provide an officer with probable cause to search a vehicle. However, in 2008, the voters approved an initiative to change the status of possessing one ounce or less of marijuana to a civil offense, not a criminal offense. Here, Defendant was stopped in a high crime area, appeared to be nervous, and the officer indicated that he smelled marijuana.
Whether the officer had probable cause to order Defendant out of the vehicle and conduct a search of his vehicle.
No, based on the new initiative, the officer did not have probable cause to believe the a criminal amount of contraband was found in the vehicle, therefore, he should not have ordered Defendant out of the vehicle and searched his car.
In State v. Smalley, the court rejected the decriminalization Act of 2008, and continued to criminalize small amounts of marijuana. 233 Or. App. 263, 265, 270-1, 225 P. 3d 844 (Ct. App. Or. 2010). However, this court rejects the Court of Appeal’s of Oregon’s reasoning because, in this case, the standard for obtaining a search warrant to search the vehicle would not be met and that is the same standard that must be used to evaluate the officer’s conduct. The ballot initiative in 2008 was meant to allow officers to use their time for more serious offense. Likewise, the fact that Defendant was in a high crime area and appeared nervous does not amount to reasonable suspicion for the officer to order the Defendant out of the vehicle and search the vehicle. Therefore, the officer’s actions in this case were improper when he detained Defendant and searched his vehicle.