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smudged123

"Probable cause Facts or evidence that would lead a reasonable person to believe that a crime has been, is being, or will be committed and the person arrested is responsible

At this stage, police may perform a search, and often an arrest. Probable cause generally means police know what crime they suspect you of and have discovered evidence to support that belief. Common examples include seeing or smelling evidence which is in plain view, or receiving an admission of guilt for a specific crime."

This is an excerpt from Definition of Probable Cause | FlexYourRights.org
as the definition of probable cause.
I'm still a bit unsure what this means though:
Would this mean if you were stopped by an officer, and when they came up to your window and claimed to have smelled marijuana, is that alone probable cause? Or does it need to be in plain view as well?

 

FakeBoobsRule

Probable cause to search you or the car or what are you asking? There is another bird, exigent circumstances, that comes into play.

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smudged123

Search the car

king cola

In the United States if a cop smells marijuana in the car he can search it. Few years ago one of my cousins was smoking a joint in a car with his friends when they were driving, when they were done they threw the roach out the window. They got pulled over for some sort of traffic violation. The cops smelled the pot but there was none in the car, but they called for backup and had them all get out and patted them down and i think they searched the car too.

If the cops see something illegal in plain view they do have the right to search the car without needing a warrant or your permission to do so.

elicit

And the worst part of all this is who can say if the officer really smelt marijuana or not. He coudl have just stereotyped against me because I look like a hippie

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phuzz01

A finding of probable cause is based on the totality of the circumstances. An officer on his first day with little or no prior life experience may not have enough training or experience to be able to say that the odor he smelled is marijuana. However, an officer with sufficient training or experience can say with a reasonable amount of certainty that the odor he smelled is marijuana. In that case, odor alone will be sufficient for a finding of probable cause.

People keep saying that the officer will just say that they smelled marijuana, even if they didn't. That's a bunch of bull. I am not going to risk my job and a felony conviction for perjury by stating that I smelled the odor when I really didn't. A minor marijuana arrest doesn't mean jack squat to me, so I have absolutely no reason to lie.

Also, just because you don't smell marijuana in your own car, doesn't mean that I don't smell it. As someone who does not smoke marijuana, the odor is much more distinct and apparent to me than it is to someone that is around it all the time.

walstmonky

How about a CA or other medical state resident in compliance with their local medical statute?

In a car perhaps perhaps that's PC to do a field sobriety test? Does the smell of liquor on a driver's breath give PC to search the car?

There's a case in NV appellate court where the 'probable cause' was the smell of burning cannabis but the resident was legal under their rules. But that was a private residence not a car.

Just asking, not trying to make any statements except maybe things aren't quite so black and white in some states.

phuzz01

I don't need PC to do a field sobriety test. I need the driver's consent. If he refuses, then I have to decide whether there is sufficient evidence of impairment to arrest without field sobriety tests.

If it's a close call, I would tend to lean towards making the arrest. If I arrest them and it gets thrown out in court, so be it. But if I don't arrest and they are impaired and kill someone 10 minutes later, that would be bad. So don't think that refusing to takes FSTs is going to get you off the hook.

Generally, no. I would have to be able to articulate that the odor of alcohol on the driver's breath means that it is more likely than not that there are illegal items in the vehicle. I could try to argue that alcohol on their breath is evidence that there are open containers in the vehicle. But that is a stretch, and I don't think a judge would buy it.

As I mentioned in another thread, the standard of probable cause is the same whether for a car, a person, or a private residence. The difference is that, in many states, a police officer that has probable cause to search a car may do so without a warrant (Carroll v. US). A police officer with probable cause to search a residence needs a warrant or an exception to the warrant requirement. But either way, probable cause is probable cause. So, if the NV appellate court decided that the smell was or was not sufficient for probable cause, that would apply to BOTH cars and residences. However, a ruling by a NV appellate court is only binding to lower courts under its jurisdiction. Their ruling is not binding on other NV appellate courts, lower courts under those other appellate courts, the NV Supreme Court, or any court in any other state (or federal). So that ruling has a limited effect.

You are right in that very few search and seizure issues are black and white and consistent across jurisdictions. However, the vast majority of courts have ruled that an officer with proper training and experience smelling the distinct odor of marijuana constitutes probable cause.

king cola

I know this site is about marijuana but i have some questions to ask because someone brought up about field sabriety tests. Let's say you take and pass the field tests and then the cop says that they want to give you a breathalizer test, if you refuse that part of the test can they bring you in on dui charges when you have passed the field tests? What if a cop pulled someone over but didn't want to give them the field test and just offered the breathalizer test and the person refused that but asked the cop if they could take a field test, do they have that option or would it just be a dui charge?

I've heard of this happening to people who had passed the field test and took the breathalizer test and failed. Personally i think if someone smoked a little pot or drank 2 beers and passed the field tests that would prove that they probably could drive. In my state if your at .08 your intoxicated, they had to lower the tolerance level because the government threatened to not give the states highway funding if they didn't lower their tolerance levels. If someone weighs 400 pounds and registered at .08 on a breathalizer i doubt they would be drunk at that level.

If someone can't pass a field test then they don't belong driving, but i can't say the same for people that fail a breathalizer test because of a glass of wine.

phuzz01

By breathalizer test, I assume you mean the Portable Breath Test (PBT) that police officers use in the field. Whether those tests are admissable in court varies from state to state, and jurisdiction to jurisdiction. In places where the PBT result is admissable, a test over .08 could be sufficient probable cause to arrest by itself, regardless of how you perform on field sobriety tests. In places where the PBT result is not admissable, the officer would need other signs of impairment to constitute probable cause for arrest.

In my state, refusal to take a PBT test in the field cannot be used against you in court. Further, PBT results are very difficult to get allowed into court as admissable evidence. So I personally choose not to use one for DWI cases. I conduct field sobriety tests and make other observations of the defendant's level of impairment, and base my decision to arrest off of that.

Once a defendant is under arrest for DWI, the implied consent law kicks in. Back at the station/barracks, I can demand a breath test (using a more sophisticated instrument than the field PBT), blood test, urine test, physical tests, etc. If you refuse any of those tests, the refusal is admissable in court and your license is also administratively suspended.

Also, I don't think you have an accurate understanding of the way alcohol affects the body at various BAC levels. It would take a 400lb person considerably more alcohol to get to a .08 than it would a 100lb person. However, if the 400lb person drinks enough to get to a .08, and the 100lb person drinks enough to get to a .08, they are likely to show a similar level of impairment. The BAC is percentage of alcohol in the person's blood, so that is going to be consistent across various weights and body masses.

Also, "a glass of wine" would not be sufficient to get ANYONE to a .08. On average, a single drink (can of beer, glass of wine, shot of liquor) will give a person a BAC of approximately .015. Someone of smaller body mass a little higher, someone of larger body mass a little lower. But no way up to a .08. You have to drink several drinks over a relatively short period of time to get to a .08, and trust me when I say, you are impaired at that level.

Yes, I have performed my own testing involving a PBT and several drinks.