As far as I know, the supposed "smell" of marijuana by itself is not considered probable cause in Delaware. There have to be more tangible facts. I come by this admittedly and decidedly unlawyerly opinion by way of the hundreds of cannabis cases I've watched and read through.
It is important to note that courts have already begun to deconstruct cop procedures on this. For instance, courts have been consistently saying that it is unreasonable search for a cop to have you open your window further and stick their head inside for a better sniff. I've heard good lawyers argue successfully that a smell alone is not probable cause or even concrete evidence since it is impossible to bring a smell into court for examination, unlike a radar gun reading (though that has started to crumble, too.).
The smart thing, of course, is not to carry weed around in your car, particularly enough to create a "pungent odor". Don't have anything in plain sight that would help a cop establish probable cause; no roaches, pipes, clips, papers, baggies, joints, and etc.
Passing the Smell Test
So judge, tell me when you last smelled a bunch of fresh, raw marijuana on the street? What? Never? You mean you never smelled the "pungent odor" that you keep finding credible? Not even once, and yet you put your judicial seal of approval on the same words uttered by a cop to justify his warrantless search time after time? Not even once.
From the Fourth Amendment Blog, a district court in Kansas approved a curious search in United States v. Hairston:
From the Fourth Amendment Blog, a district court in Kansas approved a curious search in United States v. Hairston:
Defendant also contends that the officer's statement that he smelled raw marijuana is not credible given that no raw marijuana was ultimately found in the vehicle. But the Court finds Trooper Walker's testimony credible on this point. "An officer's detection of the smell of drugs in a vehicle is entitled to substantial weight in the probable cause analysis." Trooper Walker testified that he had been through two training classes and the Kansas Highway Patrol training academy, where he learned to detect the smell of raw marijuana. He also estimated that he smelled raw marijuana four to five times per month during traffic stops, in the course of his duties as a trooper. The fact that Trooper Walker did not ultimately find marijuana, and instead found cocaine, does not dissipate his credibility for purposes of the probable cause analysis.
The rationale isn't entirely crazy. After all, if the car held a substantial quantity of raw marijuana, which was since removed from the car, the smell could linger, right? So you get the smell, giving rise to probable cause, but no pot. It could happen.
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