Louisiana, through a series of laws, legalized the use of marijuana for specific medical conditions. Does the new law raise affect warrantless searches? or more to the point “is the smell of weed probable cause for a search in Louisiana?”
The smell of weed in a motor vehicle is “probable cause” to search a car; however, the smell of marijuana is not probable cause to search a residence.
With the recent changes to marijuana laws, it’s vital to know your rights regarding legal searches.
The smell of weed can be probable cause to search your vehicle
In Louisiana, an officer can legally search your car without a warrant if they have probable cause to believe a crime has been committed, and there is evidence of the crime in your vehicle.
The smell of marijuana or alcohol emanating from your vehicle is probable cause that you are committing the crime of operating a vehicle under the influence of drugs or alcohol, and they have the authority to search your car without a warrant or consent.
However, their authority to search your car isn’t boundless. They can only explore the area of the vehicle that they believe contains evidence of the crime. They are not allowed to perform a comprehensive search.
The smell of weed may not reach the probable cause threshold to search your residence
To permit governmental agents to search on such a basis would undermine the right of individuals guaranteed by our
Individual rights are protected in Louisiana by the state constitution which state persons “shall be secure . . . against unreasonable searches, seizures, or invasions of privacy.” La.Const. of 1974, Art. 1, Section 5.
The protections apply not only to people but also to their property. However, sometimes law enforcement officers may conduct searches without warrants. Whether a warrantless search is legal comes down to the reasonableness requirement.
Generally, a search and seizure conducted without a warrant but based on probable cause that a crime has been committed is per se unreasonable unless justified by an exception to the warrant requirement
The warrantless exception of exigent circumstances was used in the past to conduct a property search based on the scent of weed. Courts consider “exigent circumstances” as an emergency requiring immediate action to protect life or the destruction of evidence.
In these cases, the courts look at the totality of the circumstances, including the gravity of the offense. Since the advent of the new marijuana laws and the subjective nature of the sense of smell, the scent of marijuana does not fit into any warrantless search exception. The smell of weed is not probable cause for a search in most locations.
If police suspect you’re growing or smoking weed in your house, they need more than just the smell of marijuana to search. It’s also true that a police officer must witness you smoking marijuana in public to arrest you.
If you think your car or residence was searched illegally and your rights were violated, contact our office to get an experienced criminal defense attorney on your case. The evidence obtained in a search may be excluded from being used against you.