Thanks in part to Delaware decriminalizing cannabis, the Delaware Supreme Court ruled that cannabis odor detected during a traffic stop is not enough probable cause for arrest.
One local resident seems to have had their charges dismissed because of the court’s decision. Delaware police had pulled over a car driven by a juvenile, known in court documents only by the pseudonym “Heather Juliano.” She and her passengers were arrested after the officer reported smelling cannabis in the car. At the police station, to avoid being strip-searched, Juliano turned over a bag of cocaine and a bag of cannabis. The court’s 4-1 decision dismissed the charges for aggravated cocaine possession, aggravated possession of marijuana, and drug dealing on the basis that the evidence was illegally obtained and, therefore, inadmissible.
The court’s September 10th decision read, “Under the totality of the circumstances presented by the state in this unusual case, including the vagueness of the officers’ description of the marijuana odor, the timing of their detection of that odor, and the absence of any other observations indicative of criminality, Juliano’s arrest was unreasonable.”
The court ruled that cannabis odor doesn’t establish fair probability that Juliano consumed it in a moving vehicle. The court did not support the conclusion that the officers knew that Juliano and any of her passengers were younger than 18 – which would’ve triggered a misdemeanor under Delaware law. The court determined there was no observable evidence from the officers of any possession of larger quantities of cannabis.
If an officer thinks they have probable cause to believe a misdemeanor crime was committed in the officer’s presence, Delaware law allows warrantless arrests. Warrantless arrests for civil violations are not permitted.