Yes. This is a dangerous precedent because video and audio cannot usually verify what the officer smelled. In McDaniel v. State, one officer testified that he could smell weed but another officer on the same stop testified that he COULDN’T smell the “strong odor” of marijuana and the courts still decided that it was a proper search.
In one case I was able to determine that an officer did not smell something he claimed to smell. In the video the officer stated something along the lines of “I can’t smell anything” but his police report and testimony stated that he “could smell a strong odor of intoxicants.” So, all hope is not lost if this is the type of search that was conducted on your vehicle, but your situation is still dire.
McDaniel v. State, 337 Ark. 431, 438, 990 S.W.2d 515, 519 (1999):
In the instant case, there is no dispute whether the officers lawfully pulled McDaniel over for a traffic violation. See, Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Probable cause to search was also present based upon the smell of marijuana. Green, supra.. Officer Hartwick testified that, upon approaching the truck, he smelled a strong odor of marijuana, as if it had just been smoked. Although Officer McNew testified that he did not smell the “strong” odor of marijuana, we will defer to the trial court’s finding of fact, absent an abuse of discretion, when the only determination is the witness’s credibility. Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997).
Brunson v. State, 327 Ark. 567, 571-72, 940 S.W.2d 440, 441-42 (1997), as supplemented on denial of reh’g (May 5, 1997):
…upon smelling the marijuana or its smoke emanating from the vehicle, Detective Breckon had probable cause to believe that an offense had been or was being committed in his presence. Quite simply, the smell of the marijuana or its smoke emanating from a vehicle constitutes facts and circumstances sufficient to warrant a person of reasonable caution to believe that a controlled substance has been or is being possessed **442 or delivered or both, and, thus, that a violation of law has occurred or is occurring.
Courts in this state have held that the smell of marijuana or its smoke emanating from a vehicle gives rise to reasonable suspicion to detain the occupants to determine the lawfulness of their conduct, Phillips v. State, 53 Ark.App. 36, 918 S.W.2d 721 (1996), to search the vehicle, Lopez v. State, 29 Ark.App. 145, 778 S.W.2d 641 (1989) (citing Gordon v. State, 259 Ark. 134, 529 S.W.2d 330 (1976), cert. denied, 434 U.S. 929, 98 S.Ct. 414, 54 L.Ed.2d 289 (1977)), and to arrest some or all of its occupants, depending upon the particular circumstances, Crail, 309 Ark. 120, 827 S.W.2d 157.
*572 In the present case, the smell of the marijuana or its smoke emanating from the vehicle gave Detective Breckon reasonable cause to believe an offense had been or was currently being committed inside the enclosed space of the vehicle. He thus had probable cause to arrest the occupants of the vehicle consistent with Rule 4.1(a)(iii). We are not persuaded by Appellant’s argument that an individualized suspicion or cause is required to arrest each occupant under the facts and circumstances presented in this case. Such an argument would lead to the illogical conclusion that none of the four occupants could have been arrested even though the smell of marijuana or its smoke was emanating from the enclosed space of the vehicle where all four occupants were present.
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