OH8: Smell of raw MJ from car didn’t support search of envelopes in car

Defendant was stopped by Cleveland State University officers for a traffic offense, and there was a strong smell of marijuana coming from the car. That gave probable cause to search generally for the source of the marijuana, but the court finds that envelopes could not be searched for that raw marijuana because they couldn’t hold what the probable cause indicated. State v. Vega, 2017-Ohio-651, 2017 Ohio App. LEXIS 649 (8th Dist. Feb. 23, 2017) (2-1):

[*P16] The trial court in the case at hand found that “without more, the smell of marijuana does not provide probable cause to open every container located during the search.” Additionally, the court concluded that the “delay while waiting for an answer via either the ‘sniff’ of trained K-9 officer or legal guidance from superiors exceeded constitutionally permissible grounds to detain the defendant in this case.” See State v. Miller, 10th Dist. Franklin Nos. 10AP-1017 and 10AP-1018, 2011-Ohio-3600, ¶ 30 (“a police officer may stop and detain someone for a minor misdemeanor offense, but the officer is not allowed to arrest that person and conduct a search incident to that arrest”).

[*P17] In conclusion, the smell of marijuana amounts to probable cause to search a vehicle. However, this is limited to “every part of the vehicle and its contents that may conceal the object of the search.” U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The trial court in the case at hand, after evaluating the credibility of Officer Madej’s testimony, concluded that the Officer was searching for raw marijuana and did not believe the envelopes contained this contraband. This factual conclusion is supported by the evidence in the record. The court then concluded that an unreasonable amount of time passed while the police were looking for another basis for probable cause to open the envelopes. Accordingly, the court did not err in granting Vega’s motion to suppress, the state of Ohio’s sole assigned error is overruled, and the trial court’s judgment is affirmed.

One would not find this case to be universally followed.

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