The odor of burnt or raw marijuana, when detected by a law enforcement officer, supplies the requisite probable cause in Iowa to search a vehicle or apply for a warrant to search another’s property.
You might think that a district court judge would require proof of some level of training and certification before determining the officer was qualified to distinguish between the odor of marijuana and, say, any other dried plant material?
Turns out that’s not the case. In fact, some basic drug interdiction training coupled with a tautological opinion from the officer that “marijuana smells like marijuana” will typically be enough proof.
“The sense of smell is one that by its very nature requires permitting a witness to testify in the form of an opinion. It is virtually impossible to verbally describe a smell except in terms of conclusions rather than specific identifiable facts.” Barbara E. Bergman et al., 3 Wharton’s Criminal Evidence, Smell § 12:11 (15th ed. 2019).
In other words, the officer is not required to describe the odor with the specificity that a sommelier might offer when describing a particular vintage.
Perhaps that is also due to the fact that the odor of marijuana is distinctive and easily recognized. You don’t have to be a veteran of the task force to detect the odor of marijuana gently wafting through a cracked car window, right?
Do you think law enforcement can differentiate, however, between the odor of legal hemp and illegal marijuana?
Both are cannabis; the only difference is the amount of THC by dry weight.
Something to think about as the public begins the embrace the use of hemp and hemp extracts in Iowa.
