What to Do When Police Claim to Smell Marijuana in Indiana
You’re driving home. It’s been a good night. Suddenly, the red and blue lights pop up behind you. You pull over, thinking it’s a routine stop. Then the officer says the five words that make your stomach drop:
“I smell marijuana in your car.”
This moment can change everything. What you say next may be the difference between driving home and going to jail.
At the Marc Lopez Law Firm, we’ve helped hundreds of clients deal with exactly this kind of encounter. This blog will walk you through what your rights are, what you should say, and how Indiana law treats this situation.
The Golden Rule: Do Not Consent to a Search
If an officer tells you they smell marijuana and want to search your vehicle, your answer should always be:
“Officer, I do not consent to a search.”
Say it clearly. Say it calmly. Then stop talking.
Hesitating or adding qualifiers can give the impression you are agreeing. Anything less than a firm and clear refusal can be twisted later into a claim that you gave permission.
Why This Phrase Matters: Your Fourth Amendment Rights
The Fourth Amendment protects you from unreasonable searches and seizures. Police must have either:
- A valid warrant,
- Probable cause, or
- Your consent.
When you clearly say “I do not consent,” you remove that third option. You are forcing the officer to rely entirely on whether they have legal grounds to proceed. In Indiana, the smell of marijuana has long been used to justify probable cause. But the legal landscape is shifting.
Indiana Law on Marijuana and Probable Cause
Under Indiana Code 35-48-4, marijuana possession remains fully illegal. Unlike other states that have legalized or decriminalized cannabis, Indiana treats marijuana as a controlled substance with criminal penalties.
Because of this, the Indiana Supreme Court has ruled that officers who smell marijuana can search not only the passenger area but also the trunk of a vehicle if they believe the odor comes from the car’s interior. This includes searches of the driver, passengers, and even containers in the car.
So yes, in Indiana, that smell can give law enforcement probable cause to conduct a full vehicle search.
Run the Three-Point Test
Even in a state where marijuana is illegal, your defense attorney will analyze the details of the stop. You should mentally run through this test:
- What is the law in your state?
In Indiana, marijuana is illegal. The courts will likely treat odor as probable cause. In states where cannabis is legal, the same odor may no longer justify a search. - Burnt vs. fresh marijuana?
There’s a legal distinction. Burnt marijuana suggests past use, not that a crime is actively occurring. The smell of fresh marijuana suggests physical possession, which gives stronger support to probable cause. - Who is being searched?
Even if the officer claims they smell marijuana, that doesn’t automatically extend to searching every person in the car. Each search requires individual probable cause. That said, Indiana law is not favorable to passengers in these situations.
Passengers should still assert their rights by saying:
“Officer, I do not consent to searches.”
Common Police Tactics and How to Respond
Police may use certain phrases or tactics to pressure you into consenting. Here’s how to respond without escalating the situation.
Tactic 1: “If you have nothing to hide, you won’t mind waiting for the K9 unit.”
This is designed to intimidate you. Legally, police cannot extend a stop just to wait on a drug dog unless they have additional grounds.
Say:
“Officer, am I being detained or am I free to go?”
Repeat that question. If they can’t answer it, they may be illegally prolonging the stop.
Tactic 2: “You made furtive movements. What were you reaching for?”
Officers may use vague claims to justify further searches. If they say you were reaching for something, put your hands on the steering wheel or dashboard and say:
“Officer, my hands are in plain sight. I do not consent to searches.”
Tactic 3: The pretext stop.
You get pulled over for a minor issue like a taillight or rolling through a stop sign. Then the questions start piling up. This is legal. It’s a pretext stop, and it happens all the time.
Answer the questions related to the stop, then pivot:
“Officer, I do not consent to any searches. Am I free to go?”
What About At Home?
If police show up at your home and say they smell marijuana, the same principles apply.
Do not open the door.
You are not legally required to open the door unless they have a warrant.
Speak through the door and say:
“Do you have a warrant?”
If the answer is no, say:
“I do not consent to any searches. Please leave.”
You are not required to open your door for law enforcement. That’s true for anyone else too, including Girl Scouts and salespeople. If they don’t have a warrant, they don’t get to come in.
Two Phrases That Can Protect Your Freedom
There are two statements that every driver in Indiana should memorize:
- “I do not consent to searches.”
- “Am I being detained or am I free to go?”
Use them. Repeat them. They protect your rights and may limit what can be used against you later.
Why You Need a Criminal Defense Attorney in Indiana
If you’ve been arrested or searched because of the smell of marijuana, call the Marc Lopez Law Firm. We know Indiana law. We know how to challenge probable cause. We know how to fight evidence obtained through questionable searches.
We love helping Hoosiers push back when the government oversteps. Our goal is always to get the best result possible and protect your future.
Call us today at 317-632-3642.
And remember, always plead the Fifth.