- Hi, I'm Andrew Flusche,
your Virginia traffic and misdemeanor defense attorney.
Is being in a vehicle with marijuana,
with the odor of marijuana
enough to be guilty of possession of marijuana.
Let's talk about that.
(soft music)
There's a really good case on point in Virginia
called Loudermilk versus Commonwealth.
And loud is spelled like loud music,
L-O-U-D-E-R M-L-I-K.
So Loudermilk versus Commonwealth.
In that case, the defendant was driving a vehicle.
There was marijuana located in the vehicle
and this was actually a rental car.
So it's a vehicle that he didn't own
and it was known to the court in the case
that it was a rental car that he had told police
he had leased two or three days earlier.
The vehicle had the strong odor of marijuana.
If you'd been around any marijuana cases involving vehicles,
pretty much they always have a strong odor of marijuana.
And so they found contraband in the vehicle, marijuana.
The defendant in this case notably admitted
that he was familiar with marijuana,
'cause he used to be a marijuana user.
This is not just a case where we don't know.
The officers actually asked him,
he admitted that he used to use marijuana.
He denied that this was his marijuana,
or that he had any idea it was there.
The court in the Loudermilk case said
that this defendant, Mr. Loudermilk,
was in possession of marijuana.
It's what's called constructive possession,
but the court said he was in possession
because there was evidence that
he was familiar with the smell of marijuana.
That was the linchpin of the case.
That he was familiar with the smell,
and because he'd had the car for two or three days,
the court said it was very reasonable to conclude
that he, because he was familiar with the smell,
he'd had the car for two or three days,
it was his vehicle he was using at the time,
that he should have known there was marijuana in it,
and he likely did know.
That's basically what the court said.
But the linchpin is because there was proof
that he was familiar with the smell.
So if there's a case where the defendant
was never even asked, are you familiar with marijuana?
You ever been around people smoking marijuana?
Have you ever smoked marijuana?
They're simple questions law enforcement could ask,
and if they don't ask those questions,
then I would argue that there's no proof
that this defendant actually knows what the smell is.
And in the Loudermilk case,
according to the court's reasoning,
it seems like they would have dismissed that case
and said the conviction is vacated because
there was no evidence that he was familiar with the smell.
And especially in that case, since it was a rental car,
and so it could have been left by someone else.
What they said was that was unreasonable
in Louder milk's case,
because he was familiar with the smell.
And so basically, after two or three days had elapsed,
the smell was still there,
he knew that there was still marijuana in the car.
So it would be an interesting case if he'd just
picked the rental up 15 minutes earlier
and had a contract showing that.
Even though he's familiar with the smell,
it would be reasonable that maybe the previous
lessee of the car had smoked marijuana.
So Loudermilk is important for two respects,
basically because the smell was proven
to have lingered for so long, and he knew about the smell,
knew what the smell meant and what it was.
Because that's important for constructive possession,
not only to prove that you knew of
the presence of the marijuana,
but also you knew the nature and character of the substance.
In this case, because of the odor,
the court says he should have known it was there,
he did know it was there,
because he knows what marijuana is,
but also because he knows what marijuana is,
and he's used it before,
he knows that that smell means there's marijuana.
So those things kind of get conflated sometimes,
and basically we think, if there's odor,
you must be guilty, but that's not true.
That's not what the cases say, and that's not Virginia law.
The Commonwealth has to prove that you actually
knew the nature and character of the substance,
and you were aware of its presence,
and of course you had dominion and control.
So those are the issues for constructive possession.
Loudermilk is a good case
that everybody should be familiar with,
and hopefully it's helpful if you're ever defending yourself
or hopefully it's helpful
if you're an attorney watching this.
If you do have a case in Virginia you need help with,
give me a call and I'd be happy to talk with you.
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