Delaware: Supreme Court Says Marijuana Odor Isn’t Grounds for a Warrantless Arrest

Dover, DE: Police officers may not make a warrantless arrest of a person based solely upon the odor of marijuana emanating from them, according to a ruling by the state’s Supreme Court. 

In a 4-1 decision, the court determined that the smell of marijuana alone does not provide police with “reasonable grounds to believe” that either a felony has been committed or that a suspect “has committed a misdemeanor … in the officer’s presence.” Under state law, a warrantless arrest is only permissible in those two instances, or if the suspect is under 18 years of age. The possession of up to one ounce of cannabis is a civil violation in Delaware, regardless of the age of the person possessing it.

The majority of the court ruled that there was no possibility that the arresting officer could have reasonably presumed the suspect’s age at the time of the arrest or that the suspect possessed felony quantities of marijuana. The court further found no evidence that the defendant committed a crime while in the arresting officer’s presence. 

The court’s ruling reverses a lower court decision and suppresses all further evidence of drug law violations that were identified following the defendant’s arrest. 

The case is Juliano v. Delaware.