Pot odor not probable cause to search parked car

Evidence from a warrantless search was properly excluded where police were drawn to the defendant’s parked car by the odor of burning marijuana, the Court of Appeals of Virginia held in an unpublished opinion.

While smoking marijuana had recently been decriminalized in Virginia, the commonwealth claimed the defendant smoking marijuana in her car gave their officers probable cause to search for more contraband.

The trial court disagreed and suppressed the evidence. Court of Appeals Judge Glen A. Huff affirmed the ruling.

“Assuming without deciding that the civil nature of the offense makes no difference to the validity of the search, this Court affirms for a different reason: the totality of the circumstances here did not establish probable cause to search the vehicle,” Huff wrote.

Huff was joined by Judges Randolph A. Beales and Vernida R. Chaney in Commonwealth v. Spencer (VLW 023-7-080).

‘Little bit of weed’

On an April evening in 2021, Ambritt Spencer smoked a marijuana cigarette in her car in the parking lot of the Red Roof Inn in Virginia Beach. Her car was running and she sat in the driver’s seat with her window cracked open.

Officer E.J. Hawker of the Virginia Beach Police smelled burning marijuana as she drove through the hotel’s parking lot. She parked her patrol car and searched the parking lot. After noticing Spencer’s car, Hawker and another officer approached it from behind with their body cameras recording.

Hawker greeted Spencer, pointed to the burning cigarette and said “I can smell that from all the way down the road.” She then asked if it was “a little bit of weed.” Spencer confirmed it was marijuana and Hawker said that was why she pulled over.

Spencer said “All I have is a blunt,” and told the officers she was staying at the hotel with her mother. Noting that operating a vehicle while smoking marijuana could constitute a “DUI offense,” Hawker said they were going to search Spencer’s car and confirmed she didn’t have any weapons.

Spencer said she was sitting in the car for warmth and “wasn’t planning on moving.” Hawker found a small plastic bag and straw that contained cocaine residue in the car and arrested Spencer for drug possession.

In January 2022, Spencer moved to suppress evidence from the search. The officers, she argued, didn’t have probable cause because marijuana possession was a civil offense rather than a crime.

But the commonwealth contended the civil nature of the offense didn’t make any difference to the constitutionality of the search; marijuana was illegal at the time and, therefore, contraband.

Spencer also claimed the search violated Virginia Code § 18.2-250.1(F), which prohibited police searches based solely on the odor of marijuana.

At the time of Spencer’s arrest, Code § 18.2-250.1 generally made it unlawful for someone to knowingly or intentionally possess marijuana. The statute clarified that violators were subject to a civil penalty served by summons, rather than arrest.

During the motion hearing, Hawker testified that she didn’t investigate for driving while intoxicated because Spencer “was very cooperative” and “was acting normal.” Body camera footage confirmed how the officer described the interaction.

The trial court granted Spencer’s motion, noting that the search was “based not on odor, but odor and sight and admission of marijuana, which at the time gave rise to a civil penalty.” Finding the civil nature of the offense determinative, the court held that the officers didn’t have probable cause for the warrantless search.

The commonwealth filed a pre-trial appeal.

No ‘guesswork’

Warrantless searches under the automobile exception are allowed “where there is a ‘fair probability that contraband or evidence of a crime will be found in’” the vehicle, Huff noted.

But officers could only search Spencer’s car if they had probable cause.

“Because probable cause ‘deals with probabilities and depends on the totality of the circumstances,’ it is ‘a fluid concept’ that is ‘not readily, or even usefully, reduced to a neat set of legal rules,’” Huff pointed out.

For that reason, courts must “review the totality of the circumstances by ‘consider[ing] the whole picture’ — not just one ‘fact in isolation.’”

Huff rejected the commonwealth’s assertion that the presence of the marijuana cigarette alone established probable cause to search for more marijuana.

“[P]robable cause requires a review of the totality of the circumstances, and here a full review of the facts shows there was no fair probability that the car contained additional contraband or evidence of a crime,” the judge wrote.

Huff noted that the smell of burning marijuana drew the officer to Spencer’s car. Nor did he have to make a traffic stop as Spencer was legitimately parked on private property that wasn’t in a “high-crime area.”

Nothing showed that Spencer had been driving recently or planned to drive. The officers didn’t think Spencer was dangerous or uncooperative; she even admitted smoking marijuana, which didn’t indicate that she had bought it unlawfully.

“Nor did the officers note any other circumstance — other than the cigarette — suggesting the car contained additional contraband, let alone evidence of a crime,” Huff said. “They saw no other drugs or drug paraphernalia in plain sight, noticed no weapons, and detected no additional scent of marijuana coming from the car.”

“The Commonwealth has failed to articulate any other circumstances contributing to a probable cause finding, instead relying on the assumption that a reasonable officer in this scenario could infer from the burning marijuana cigarette alone, without additional circumstances, that appellee had more marijuana in the car. Such guesswork without additional facts, as is the case here, would amount to nothing more than a suspicion — and ‘probable cause requires more than a strong suspicion.’”

— Judge Glen A. Huff

These circumstances didn’t create a clear possibility that Spencer’s car contained other contraband, the judge said.

“The Commonwealth has failed to articulate any other circumstances contributing to a probable cause finding, instead relying on the assumption that a reasonable officer in this scenario could infer from the burning marijuana cigarette alone, without additional circumstances, that appellee had more marijuana in the car,” Huff wrote. “Such guesswork without additional facts, as is the case here, would amount to nothing more than a suspicion — and ‘probable cause requires more than a strong suspicion.’”