How to react if a cop pulls you over and they claim to smell weed, according to a lawyer

We all (at least hopefully) understand why some level of traffic enforcement is necessary these days, but that doesn’t mean it’s any less awkward when a cop pulls you over. Especially if you don’t know why they’re pulling you over or aren’t a white man. And while most of us are prepared for the basics, like a speeding ticket or a citation for going past a stop sign, what do you do if the cops claim to smell weed? Do they get to do what they want from that point? Is there a better response than “You should stop smoking weed before your shift, officer”?

According to Jeff Hampton, a former prosecutor turned criminal defense attorney at the Hampton Criminal Defense Attorney Law Firm, your approach depends on the answers to three questions: First, is recreational marijuana legal in your state? If it is, the courts are much less likely to consider it a valid reason to stop smelling the grass, but if it’s not, you’re in for a tougher time. Second, do the police claim they smell fresh or burning marijuana? Because of this it is much harder to claim that your rights have been violated if they claim they smelled smoke vs. fresh weed, since the smoke may be coming out of other locations as well.

Third, if the police claim they have probable cause to search your vehicle, have they found probable cause to search your passengers? If everyone exercised their right to remain silent, it would be much less. There’s no guarantee the cops won’t arrest you anyway, but it’s much easier for your lawyer to defend against the charges if you keep your mouth shut and let the cops make legal mistakes. Give consent to a search, even if you don’t believe you did anything wrong, and you could be making your life more difficult.

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Hemp-derived THC vs. super-illegal marijuana

Georgia’s Majlum Law Firm also published a blog post last year that focuses on answering this same question in Georgia, where marijuana is still illegal. Specific laws will vary in your state, but it may still be helpful if you live in an anti-weed state where courts have ruled that the smell of marijuana constitutes probable cause to search a vehicle. One of the points they raise is that hemp-derived THC products are largely legal, which means the courts have to prove that any weed they find in your car is actually an illegal THC plant and not a legal THC plant.

If they can’t prove that you are in possession of marijuana, your attorney will have a very strong case. And since the smell of hemp is usually indistinguishable from marijuana, it can be difficult for police to establish probable cause, even in states where weed is still illegal. But whether or not there’s anything illegal in the car, according to Majlum Law, the best advice is, “Remain calm and polite. Don’t argue or try to get out of the situation. Don’t consent to a search. Say clearly, ‘I don’t consent to a search,’ and then shut up.”

Hampton doesn’t address the hemp/marijuana issue, but the silence part? You better believe he hammers that point home, like Mazloom Law. The more you talk, the more information the officer can use against you. He says to be polite but make it clear whether you are free to go or detained, and if you are detained, when you (politely) stop answering questions and ask your lawyer. What the police decide to do at that point is up to them, but the best thing you can do is not make things worse if your lawyer arrests you.

Of course, a smart reader like you wouldn’t go around smoking and driving at the same time, which is both dangerous and illegal, right?

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