Delaware Supreme Court: Cannabis Odor During Traffic Stop Not Probable Cause for Arrest

The Delaware Supreme Court last week ruled that cannabis odor during a traffic stop by itself is not enough to trigger probable cause for arrest, according to an ABA Journal report. The decision is, in part, due to cannabis decriminalization in the state.

The 4-1 decision reverses the delinquency case of a juvenile, known in court documents by the pseudonym Heather Juliano, on the basis that the cocaine and cannabis found following her arrest should be suppressed as “fruit of the poisonous tree”—an exclusionary rule to make evidence inadmissible if it was illegally obtained.

According to the report, police pulled over the car in which Juliano was a passenger because she wasn’t wearing a seat belt and the car’s occupants were arrested after police said they smelled cannabis. At the police station, the 15-year-old removed a bag of cannabis and a bag of cocaine from her pants to avoid being strip-searched, the report says. Juliano was found delinquent on charges of aggravated cocaine possession, aggravated possession of marijuana, and drug dealing.

“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 Delaware Supreme Court, Juliano v State of Delaware, Sept. 10, 2021

The cannabis odor from the vehicle didn’t establish a fair probability that Juliano consumed cannabis in a moving vehicle, the court ruled, and the record does not support a conclusion that the officers knew that Juliano or other vehicle occupants were younger than age 18—for which possessing even a small amount of cannabis would have triggered a misdemeanor charge under state law. The court also concluded that there was no evidence providing officers with a reasonable belief that Juliano had a larger quantity of cannabis that was subject to stiffer penalties, the state supreme court said.

Delaware law allows warrantless arrests for misdemeanors officers have probable cause to think that the crime was committed in the officer’s presence but warrantless arrests for civil violations are not permitted.