Indiana Appellate Courts Once Again Address Whether the Odor of Marijuana Provides Probable Cause

Two cases decided this month address the odor of marijuana as a basis to establish probable cause. Back in February 2021, the Indiana Court of Appeals held the odor of marijuana, without more, was sufficient to establish probable cause to conduct a warrantless search of a vehicle. I discussed the case in more detail in a previous blog post.

But can the odor, standing alone, be enough to allow a police officer to search a home? Or to arrest someone?

With respect to the first question, the answer is yes. In Bunnell v. State, our Supreme Court held that a police officer may establish probable cause sufficient to obtain a search warrant of a home where the officer smelled the distinctive odor of raw marijuana based on his training and experience.

In I.G. v. State, however, the Court of Appeals held the detection of the odor of marijuana by a police officer did not establish probable cause to conduct a warrantless arrest and search of one of three occupants in a vehicle during a traffic stop.

These cases reaffirm the broad application of the plain-senses doctrine in Indiana. But neither of these cases forecloses a defendant’s opportunity to challenge a police officer’s ability to distinguish between the odor of a forbidden substance like marijuana and the odor of substances similar to marijuana but legal in Indiana (industrial hemp, for example).