How To Respond If A Cop Pulls You Over And Claims They Smell Weed, According To A Lawyer

We all (at least hopefully) understand why some level of traffic enforcement is currently necessary, but that doesn't mean it sucks any less when a cop pulls you over. Especially if you don't know why they pulled you over or aren't a white man. And while most of us are generally prepared for the basics, like a speeding ticket or a citation for rolling past a stop sign, what do you do if the cop claims to smell weed? Do they just get to do whatever they want from that point on? Is there a smarter response than, "Sounds like you should stop smoking weed before your shift then, officer"?

According to Jeff Hampton, a former prosecutor turned criminal defense attorney at Hampton Criminal Defense Attorneys 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 smelling weed a valid reason to escalate the stop, but if it isn't, you're in for a more difficult time. Second, does the cop claim they smell fresh or burning marijuana? That's because it's much more difficult to claim your rights were violated if they claimed they smelled fresh weed versus the smoke, since smoke can linger and drift in from other locations. 

Third, if the cop claims they have probable cause to search your vehicle, have they found probable cause to search your passengers, as well? If everyone exercises their right to remain silent, that's a lot less likely. There's no guarantee the cops won't arrest you anyway, but it's a lot easier for your lawyer to defend against the charges if you keep your mouth shut and let the cop make the legal mistakes. Consent to a search, even if you don't believe you've done anything wrong, and you could make your life much more difficult.

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

If they can't prove you're in possession of marijuana, your lawyer will have a much stronger case. And since hemp's smell is generally indistinguishable from marijuana, it can be more difficult for the cop to establish probable cause, even in a state where weed is still illegal. But according to Mazloom Law, whether you have anything illegal in the car or not, the best advice is, "Stay calm and polite. Do not argue or try to talk your way out of the situation. Do not consent to a search. Say clearly, 'I do not consent to any searches,' and then remain silent."

Hampton doesn't address the hemp/marijuana issue, but the staying silent part? You better believe he hammers that point home, just like Mazloom Law. The more you talk, the more information the officer has to use against you. He says to be polite but clarify whether you're free to go or being detained, and if you're being detained, that's when you (politely) stop answering questions and ask for your lawyer. What the cop decides to do at that point is up to them, but the best thing you can do is not make things worse for your lawyer if they do arrest you. 

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