Can Police Use The Smell Of Marijuana To Search Your Car In Georgia?
As a criminal defense attorney practicing in Marietta and throughout Georgia, one of the most common questions I hear is whether police can search your car just because they say they smell marijuana. It’s a serious question, and the answer has gotten more complicated in recent years due to changes in Georgia law and how marijuana-related offenses are prosecuted.
Georgia still treats marijuana possession as a criminal offense under most circumstances. Under O.C.G.A. § 16-13-30, possessing less than one ounce of marijuana is a misdemeanor, while possession of more than one ounce is considered a felony. That law hasn’t changed. But what has changed is the legal landscape surrounding hemp and CBD, both of which can smell just like marijuana and are legal in Georgia.
Since hemp became legal under Georgia’s Hemp Farming Act in 2019, law enforcement officers have had a much harder time determining whether the odor they detect actually gives them probable cause to search a vehicle. That’s because hemp and marijuana look and smell nearly identical, but only marijuana is illegal under state criminal law. This has forced courts to take a closer look at what officers can and can’t do based on smell alone.
The Role Of Probable Cause In Vehicle Searches
In Georgia, the Fourth Amendment of the U.S. Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution protect you from unreasonable searches and seizures. But there are exceptions to the warrant requirement, especially when it comes to vehicles. One major exception is probable cause. If an officer has probable cause to believe a crime is being committed, they can search your car without a warrant.
For years, courts in Georgia have held that the odor of marijuana alone can give officers probable cause to conduct a vehicle search. But after hemp became legal, that reasoning started to break down. Since the smell of hemp and marijuana is the same, officers can no longer assume that any odor of cannabis automatically points to illegal activity.
How Georgia Courts Are Treating Marijuana Odor Now
Despite the changes in hemp laws, many Georgia courts still uphold the idea that marijuana odor provides probable cause, especially if there are other indicators of illegal activity. However, that doesn’t mean a search based on odor alone is always lawful.
In some counties, prosecutors and judges are starting to scrutinize odor-based searches more closely. If a search is based only on smell, with no other evidence like drug paraphernalia, suspicious behavior, or visible marijuana, the search may be challenged in court. As your attorney, it’s my job to examine the facts and determine whether your rights were violated during the traffic stop.
If the police conducted a search that we can argue lacked probable cause, we may be able to file a motion to suppress the evidence under O.C.G.A. § 17-5-30. If successful, that could result in your charges being reduced, or even dismissed.
Hemp Confusion And The Burden Of Proof
One of the main issues now is proving that the substance found in your car was actually marijuana. Since hemp is legal and smells the same, prosecutors have to rely on lab testing to confirm THC content. Hemp is legal if it contains 0.3% THC or less by dry weight. Anything over that limit is considered marijuana and illegal.
However, many local law enforcement agencies in Georgia do not have access to testing labs that can distinguish between hemp and marijuana. This puts prosecutors in a tough position. In some cases, they may drop charges due to a lack of evidence. As defense attorneys, we always hold the prosecution to their burden. If they can’t prove the substance was marijuana, they may not have a case.
How We Defend These Cases
If you were pulled over and searched because an officer claimed they smelled marijuana, we look at every detail of that encounter. Was there a valid reason for the stop? Did the officer ask for consent to search? Did they find anything illegal, or was the search unjustified from the start?
We’ve defended many clients across Cobb, Fulton, and surrounding counties in situations where a vehicle search was based only on smell. In some cases, we’ve been able to get charges dismissed entirely. In others, we’ve successfully reduced charges or minimized penalties through negotiation. Every case is different, but we know how to challenge weak probable cause claims and protect your rights under Georgia law.
Georgia Drug Possession Frequently Asked Questions
Is Marijuana Still Illegal In Georgia?
Yes. Under Georgia law, marijuana is still classified as a controlled substance. Possession of less than one ounce is a misdemeanor, while possession of more than one ounce is a felony. Hemp and CBD are legal if they contain less than 0.3% THC, but marijuana is not.
Can Police Still Search My Car Just Because They Smell Weed?
They often try to, but that doesn’t mean the search is always legal. The courts still allow odor to be a factor in probable cause, but if there’s no other evidence, we may be able to challenge the search. Hemp smells like marijuana, and smell alone no longer guarantees that something illegal is present.
What Should I Do If I’m Pulled Over And The Officer Says They Smell Marijuana?
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. Let us review your case afterward to determine whether the officer had a legal right to search.
Can The Charges Be Dropped If The Substance Turns Out To Be Legal Hemp?
Yes. If the substance is tested and shown to contain less than 0.3% THC, it is considered hemp and is legal under Georgia law. In such cases, the charges may be dropped. However, this depends on lab testing and whether the prosecution has enough evidence to prove the substance was marijuana.
What Happens If The Officer Doesn’t Have A Lab Test?
If no lab test is performed, or the state cannot prove the substance was marijuana, the case may not be able to proceed. The burden is on the prosecution to prove beyond a reasonable doubt that the substance was illegal. Without that evidence, we can fight to have the case dismissed.
Does It Matter If The Police Found Something Else During The Search?
Yes. Even if the original search was based on marijuana odor, if police found other illegal items, such as unlicensed firearms or harder drugs, that could lead to additional charges. However, if we can prove that the search was unconstitutional, we may be able to suppress all of the evidence found as a result.
What Counties In Georgia Are Taking A Stricter Approach To These Searches?
Counties like Cobb, Fulton, and DeKalb may still support odor-based searches, while others are beginning to push back and question whether odor alone is enough. Courts are becoming more aware of the confusion between marijuana and hemp, which gives us more room to defend these cases successfully.
Call The Mazloom Law Firm, LLC If You Were Searched After A Marijuana Odor Stop
If you were stopped and searched based on the smell of marijuana, it’s important to take that seriously. Even a misdemeanor marijuana charge can have long-term consequences. At The Mazloom Law Firm, LLC, we defend clients across Marietta, Atlanta, and counties throughout Georgia, including Cherokee, Clayton, Cobb, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, and Rockdale. We know how to challenge unlawful searches and protect your rights.
Don’t face the courts alone. To receive a free consultation, call our Marietta marijuana possession defense lawyer at The Mazloom Law Firm, LLC, by calling 770-590-9837. Whether you’re dealing with a marijuana possession charge or a questionable search, we’re here to help you fight back.
