Tag: weed

Is The Smell of Weed Probable Cause in Louisiana?

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.

Can You Get Arrested For Being High?

It is becoming common for states to decriminalize recreational marijuana use or approve it for medical purposes. But, can a person still get arrested for being high?

Not typically, but if being high leads to violating public intoxication laws, then yes. It is a violation of these laws when you disrupt the peace, cause a disturbance, or pose a threat to others.

Many Louisiana residents may not realize that you can get arrested for being high. But, in Louisiana, public intoxication is a crime regardless of the substance you used.

Being high can lead to your arrest.

Being high in public can lead to your arrest in certain situations. It is a violation of  RS 14:103 Louisiana law governing disturbing the peace to be publicly intoxicated.

The term “intoxicated” is not limited to being under the influence of alcohol but includes illegal drugs, controlled substances, or another intoxicant (including inhalants such as paint thinner or glue).

Public intoxication arrest typically occurs because of some disturbance, such as injuring other persons or harming property, or posing a threat to your safety.

To gain a conviction, prosecutors don’t need test results but often rely on the testimony of the arresting officer to prove their case.

A charge for disturbing the peace can result in a fine of $100 or less, 90 days or less of imprisonment, or both. The baseline penalty can be enhanced depending on the specifics of the crime.

Disturbing the peace is a charge that will remain on your criminal record unless you get it expunged. An expungement is a civil action to seal your criminal record, making these records unavailable through the State or Federal authorities.

Can I Get Arrested for Possession of a Small Amount of Marijuana?

Yes, in Louisiana, the possession, sale, and cultivation of marijuana is illegal. In specific circumstances, marijuana can be used for medical purposes.

While it is not technically a crime to be loaded in public, possession of any amount of marijuana is still illegal (unless you have a prescription).

Louisiana considers marijuana to mean all parts of plants whether growing or not;  the seeds;  the resin extracted from any part of such plant;  and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.

The law does not restrict the use of mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of a plant which is incapable of germination, or cannabidiol when in a drug product approved by the United States Food and Drug Administration.

Persons who drive high are subject to Louisiana DWI/DUI laws. If an officer pulls you over and believes that you are high, he may search your vehicle and even arrest you on a marijuana DUI.

What Are the Criminal Penalties for Possession of Marijuana in Louisiana?

The penalties depend on the amount you are charged with possessing and your prior criminal record.

FIRST AND SECOND OFFENSES

First and second offenses for possessing marijuana is a misdemeanor in Louisiana. You will face a fine of up to $300 and have a drug charge on your record.

THIRD OFFENSE

From the third offense or more, possessing marijuana in Louisiana is a felony. You are looking at up to two years in prison and more substantial fines.

LARGE AMOUNTS AND DISTRIBUTION

If you are caught possessing large amounts of marijuana (2,000 pounds or more) and distributing it to others, you can face up to 20 years in prison.

Do You Need An Attorney?

Although an arrest for disturbing the peace laws may seem silly, these charges can stain your record. If you are charged with a crime and are considering an attorney contact our office. We are experienced and can evaluate your case and inform you about your best options.