This Just Plain Smells

Abstract

The words “I smell the odor of marijuana” have historically granted police access to search persons and their vehicles without any further justification. However, with vastly differing marijuana and hemp laws quickly arising across America, courts have begun to disagree on how to approach search and seizure based on odor alone. The legalization and decriminalization of hemp and marijuana for medical and recreational use makes the application of the plain-smell doctrine inconsistent and inadequate, and often prejudicial. Additionally, police use boilerplate language to bypass procedural mechanisms set in place for the protection of the people. The Article offers the solution of an odor-plus standard via alternate routes: Supreme Court decision, Congressional intervention, and through various avenues the local level. Under such a standard, officers may not use the smell of marijuana alone as reason for probable cause to conduct a warrantless search, but must also meet at least one other delineated criterion. With criminal justice reforms at the forefront of Louisiana politics, the author suggests that the state begin to lead the nation with policies such as the aforementioned standard, because the way it has been done just plain smells.