All right, Steve Palmer here, back with Lawyer Talk.

We're going to kick around today sort of a continuation of what I call what they can't do to you series.

In other words, because it seems like people love this and I love it too.

This is like a criminal pro in law school.

Criminal procedure in law school for you.

Non law school.

Ites Crimpro.

You would think it's like the procedure, like what happens in the.

But it's not.

It's all about the constitutionality of what the police can and can't do to you.

That's how I look at it.

Or what the government can and can't do.

Yeah, because civil pro in law school, it is like the procedure side of.

And you get the krumpro thing.

It's gonna be the same and it's just not.

It's completely not right.

It's more like what's the fourth Amendment say?

What's the fifth Amendment say?

What's the sixth Amendment say?

And if you take all that crap, crap meaning the Constitution and you apply that in the real world, it's as an old mentor or buddy of mine used to say, it's what the bastards can't do to you.

Meaning, please.

Anyway, that said, I have a great relationship with most police officers and I totally respect what they do.

But I am here to do my job and make sure the government doesn't overreach.

Because as we know, or at least as lots of people believe, power corrupts and absolute power corrupts absolutely.

Not that individual cops are all bad, but that the government will creep in on you and we have to maintain the boundaries of that.

That is the history of our country.

So today we're going to talk about a scenario where.

I guess we'll call it the plain smell scenario.

Plain smell doctrine.

The plain smell doctrine.

Give us a.

Give me the.

Give me the facts.

So the facts here is a cop pulls over a car and we're going to assume that the pulling over something reasonable, some type of traffic violation.

When the cop goes up to the car, he then smells.

The cop smells marijuana coming from the car.

And the plain smell doctrine in Ohio, In Ohio I feel we're going to get into.

This has been changed a lot over the past couple years because marijuana in Ohio is legal.

But it used to be that that alone would give an officer the right to search your car, give him probable cause to search a car.

Okay, so let's back up.

So, and we've covered this before, the Fourth Amendment prevents the police or any government actor from engaging in a search and seizure without a search warrant, unless one of the carefully crafted and well delineated exceptions exist.

One of those exceptions is sort of generically called the automotive exception, meaning the US Supreme Court has held over the years that we have, we have less expectation of privacy in our vehicles, in our cars, as we're driving, because we are, by the very act, out in public.

Now when we're at home, we have a huge expectation of privacy in almost everything out in public.

It starts to go down.

Therefore, the police have held, or the Supreme Court has held, that after a police stop, the police can search the interior compartment of a car, even closed containers of a car, if and only if they have probable cause.

They don't necessarily need a search warrant.

So they don't have to stop everything on the side of the road, go find a judge, get a search warrant, but they have to have something called probable cause.

If you can define probable cause, please do.

But it basically means something more than what it took to stop the car and.

But something less than what it takes maybe to.

Or maybe about the same as a full blown arrest or.

And certainly less than proof beyond reasonable doubt.

So you would have to have some really good information that would lead a reasonable person to believe that there is evidence of a crime or some sort of contraband in the place to be searched.

Yeah.

And that would be the smell of marijuana a couple years ago.

Let's turn back and get, and turn back the clock in getting our DeLorean and go back about 10 years ago, before any legalization occurred in Ohio.

Legalized use, whether it's medical, whether it's hemp, Whether it's Delta 8, whatever it is, you couldn't use any of it.

So courts were pretty clear and it made perfect sense.

Look, I smell burnt marijuana, guys.

What's going on here, by itself, that's a crime and that is sufficient.

According to Ohio, older Ohio cases out of the Ohio Supreme Court, Was it the state versus Moore?

Yes, State versus Moore.

That's the Ohio one says, look, that's enough.

Ohio basically created what we call generically as the plain smell doctrine.

So if we smell what is obvious, and it's a takeoff on the plain view doctrine, meaning if I see contraband in the car, that's enough to go in.

If I smell contraband in the car, that's enough, that's enough to go in, meaning that's probable cause.

And it made sense because there's no legal way to use marijuana at that time.

But then all of a sudden we have not all of a sudden.

But then the law evolves and the Ohio General assembly decides that we're going to make it lawful to use medical marijuana.

So if you've got a medical condition, you have a valid card, and you decide that you want to treat your condition with marijuana, and it's quote, valid, meaning some doctor has said that you've got a condition.

Now, I'm not going to comment on what it takes to get a medical card, but I suspect it's not very difficult.

So you get a card.

Now you get pulled over, and there's a smell of marijuana.

At this point, it's not automatically assumption of it being illegal because there is legal reasons to use it.

Now it's kind of tricky because there is a legal way to use it.

So now the next step should be the officer needs to do some type of inquiry, like question the guy, hey, I smell marijuana.

What's going on?

Yeah, now this is what.

So we had the first round of cases in Ohio, talked about a scenario where.

And these happen.

So actually there's a whole bunch of cases where people were stopped before any legalization, and then legalization happens.

Then their case goes to court and they're like, well, wait a minute, now it's legal.

You shouldn't be able to search.

Well, the court said, no, sorry, Charlie, that conduct happened before.

So the old law still applies.

Now let's get to.

Could just wait a little bit longer.

But now we get to the next scenario.

So we've got legalized hemp and medical marijuana, and you get pulled over and the cop smells marijuana.

Well, there might be a lawful use.

So somebody in the car, for instance, might be allowed to use marijuana for medical purposes.

And what the courts basically have said is, all right, now you gotta poke around a little bit and find out what's going on.

Ask some questions.

So see what, see if there's something afoot that doesn't smell.

Right.

Other than marijuana.

Yeah.

So if you.

If.

Who's using marijuana, I smell it.

And the.

And the passenger says, well, I've got a medical card.

Here it is.

Well, you know, in theory, the cop, if there's nothing more than the cop would have to say, all right, well, that alone can't give me enough probable cause to start searching the interior compartment enclosed containers in the car.

But what if there's somebody else involved that says, well, I was smoking marijuana and I don't have a medical card?

Well, now maybe it starts to get.

Now there's no lawful use in the car, so now maybe you could have probable cause or maybe there's some other admission or some other fishy stuff going on.

The cop sees a, you know, a couple hundred cellophane bags, maybe scale and some scale and there's a duffel bag full of cash, vacuum sealer, vacuum sealer.

All in plain, whole warehouse.

Right.

So you know, there's other things that could develop but you would have to ask does.

So at that point the courts would say, I think is what we're going to be advocating for.

The odor goes into the milkshake of what we call generically the quote, totality of the circumstances.

Cops consider everything.

Now here's where I always get cops on the witness stands.

Like that means all the good stuff too, not just the bad stuff.

So you have to throw it all into the mix and make a decision.

Now we get to a final scenario where all recreational use is lawful.

So they're really.

You can almost always justify an odor of marijuana because you're allowed to have it and you're allowed to use it within the parameters of Ohio's legalization.

Yeah.

Gets harder.

Yeah.

Because now I feel like the assumption off the bat now is that it is legal.

I mean every time I understand there's still technically illegal ways to have marijuana, which is like in Ohio it's over 2.5 ounces or something like that.

So yes, there is still illegal ways to have marijuana, but now more times than not it's going to be legal.

So you don't even need to really do the inquiry.

I feel like, I feel like you just now.

So the question now is, does that have any impact whatsoever on the police determination of probable cause?

I think it does.

I think it still does in some way.

The police can still use that as a factor in determining perhaps whether the driver is under the influence and if they don't see any other indicia of under the influence behavior.

In other words, normal looking eyes, not slurred speech, not evidence of impairment.

Well, maybe the inquiry stops there and there isn't probable cause so it gets a little dicier.

And now the police are going to engage in questioning.

I would posit ask rather what if everybody exercises their right to remain silent and says look cop, I'm not telling you anything, Go pound sand.

I'm going to exercise politely my right to remain silent.

I'm not going to answer any questions now the police only have whatever they're looking at, whatever they're perceiving and whatever they're smelling.

And if whatever they're perceiving doesn't contribute to anything beyond smell.

I think they're dead in the water.

I think the Ohio's plain smell doctrine, which said the odor of marijuana alone is sufficient to establish probable cause, is now going to be a deadline.

At least that's what we're arguing for in a case that we're working on right now.

So we have this case.

I feel like it's equivalent as if you smell alcohol coming from the car, like that's what it is now almost.

I think.

Yeah, you're right.

I mean it is to that extent.

So if you have alcohol generally coming from the car, you have a right to investigate further.

But it doesn't necessarily mean you can go start searching the inside of the car.

Yeah, because I mean, if maybe I was driving and a case of beer broke open in the back.

Hey, sorry.

And you point, you can even see right through the car.

There's some shire beer back there.

Okay, that explains the smell of alcohol.

So it's part of the totality of circumstances.

But alone standing probably is going to yield to.

The other circumstances.

So look, this is a great issue and it's emergent, meaning it's happening as we speak.

We've got a case right now.

We're filing a motion on this and hopefully we win.

Because in this case, in our case, by the way, they didn't find any drugs.

Yeah, there was no.

They didn't find any marijuana.

They didn't find any use, evidence of use of marijuana other than their own odor.

And they found some other stuff that may have been a problem, but it wasn't drug related.

So it's a perfect case for it.

I mean, look, this is a great issue.

I would love to know how you guys treat it in whatever states.

You're listening, leave us a comment.

I'd happy to address it.

And by the way, all of this conduct is still against the law in federal court.

So I was gonna ask about that.

Like, what if it's impossible to take this to the US Supreme Court like an issue like this because it's federally legal?

Maybe we'll find out.

Okay, maybe we'll find out.

So here's the comment, here's the question.

I'd love to hear how you guys handle it or how it works in your state or what you think about it, because here we go.

This is what I love about the law.

As society changes, the law changes and then the Constitution sort of has to.

We have to interpret all these things in the context of the Constitution as we move forward.

Lawyer talk, off the record on there.

If you've got a question, you got a topic, wants to cover it, go to LawyerTalkPodcast.com leave it in the comments.

We'll get to it, I promise.