ONLY A LITTLE BIT ILLEGAL

When Justice Thomas is the author of a criminal opinion, you can be sure that it will not benefit the defendant and he does not disappoint in Utah v. Strieff. The reason this opinion is so bad is that it rewards the police for violating an individual’s constitutional rights. Here, even though the police officer had no right to stop Mr. Strieff and would not have known that an outstanding arrest warrant existed had he not made the illegal stop, methamphetamine recovered was admitted as evidence.
To understand why this is such a bad opinion, you need to understand the Exclusionary Rule. The Exclusionary Rule states that if the search or seizure is illegal then anything found can’t be used in trial except when:
1) The police would have found it anyway (Inevitable discovery)
2) There was an independent source which was completely separate from the illegal search or seizure, or
3) The connection between the misconduct and the evidence was weakened by time or intervening circumstances.
Here, Justice Thomas selected door #3, the Attenuation Doctrine. But the illegal stop was only minutes before a warrant check and subsequent search– so this doesn’t really make sense. So anytime a valid warrant exists, Strieff will be cited for the proposition that the illegal stop was only a little bit bad and after all, there was a preexisting valid warrant and the guy had drugs on him anyway. So I guess that makes it okay.

What or who can be searched when your car/the car you are in smells of marijuana?

Assume that there is a valid reason for the car you are in to be pulled over: speeding, registration etc. The car has the lingering odor of marijuana. What/who can be searched?
In State v. Pigford (Aug. 2, 2106) NC Ct. of Appeals (COA 15-1047), the court ruled that the odor of marijuana emanating from inside a vehicle does not provide an officer with probable cause to conduct an immediate warrantless search of the driver.
What does this mean?
If the car just smells of marijuana but no particular person reeks of marijuana, the car can be searched as can items which could contain marijuana but occupants of the car cannot be searched.
BUT, if an occupant of the car has a very strong odor of marijuana on his body, that person could be searched but no one else.
AND if during the search, contraband (illegal items: drugs, guns…) is found and supports the arrest of an occupant of the car, that person can be searched (as part of the arrest for possession of that contraband) but no one else can be searched.
WHAT??? I can’t keep all this straight?
Search and seizure law is tricky. Let your lawyer argue that there is no probable cause BUT don’t undermine your case by giving consent to search. If you consent, it doesn’t matter that the evidence would have otherwise been suppressed or excluded. Just know that there are many permutations of the law and it is very fact specific. So even if the car you are in smells of marijuana, it doesn’t give the police the right to search your person. The Constitution provides more protection for searches of people than of property.