The “Plain Smell” doctrine as an exception to the warrant requirement

The discovery of evidence during a lawfully executed traffic stop or warrantless search under the plain view exception to the warrant requirement is not necessarily limited to what the police officer sees. New Jersey has also adopted the “plain smell” doctrine. In the typical plain smell case, the officer will effect a motor vehicle stop and detect some odor that will provide him or her with probable cause to believe that an offense has been or is being committed. Common examples are the smell of marijuana (burning or otherwise) coming from inside the vehicle or the odor of alcohol on the breath of the operator or passengers within the vehicle. If the officer’s conduct in performing the search meets the three requirements under the plain view exception (as discussed in a previous article), a suspicious odor may provide sufficient probable cause to invoke a more thorough search under the automobile exception. Briefly, the three requirements under the plain view exception in New Jersey are

1) at the time of the viewing of the evidence, the officer was in a location where he or she had a legal right to be;

2) the officer discovered the evidence inadvertently, meaning that he or she did not know in advance where the evidence was located and did not intend to beforehand seize it; and

3) there was probable cause to associate the items seen in plain view with evidence of criminal activity.

If these three prongs are met, a suspicious smell is sufficient to create probable cause for a warrantless search of a motor vehicle under the automobile exception.