Court In Brazil Determines Cannabis Smell Does Not Justify Home Search

Cannabis prohibition enforcement involves various tactics, including the reliance on ‘smelling’ cannabis to ‘justify’ searching people, their personal property, their vehicle, and sometimes their homes. The latter was at the heart of a recent court case in Brazil that went all the way to the nation’s Superior Court of Justice.

A lower court previously determined that if law enforcement smelled cannabis from a person “who is already being investigated on suspicion of drug trafficking,” that law enforcement has just cause to search the person. However, that just cause does not extend to the suspect’s home and a judicial warrant is required, even if a different resident of the home authorizes entry.

The case involved an individual being investigated for suspected drug trafficking. After searching the suspect outside of their home and reportedly finding nothing, law enforcement then searched the individual’s home despite not having a warrant to do so. Cannabis and other illegal items were discovered during the search.

Law enforcement indicated that they had received permission to enter the residence from a different resident other than the suspect, however, the Superior Court of Justice determined that the search was illegal and that anything found during the search was inadmissible. Per Newsendip:

Minister Reynaldo Soares da Fonseca of the SCJ granted habeas corpus, a constitutional right for someone who is imprisoned to report wrongful detention or abuse of power.

Minister Reynaldo Soares da Fonseca recognized the illegality of the evidence and acquitted the defendant of any charges. He explains in his decision that there is a necessity for concrete evidence that would justify entering a home and invading the right to privacy.

“I reiterate that nothing illegal was found with the personal search, therefore not justifying entry into the person’s home,” concluded the judge.

The recent decision in Brazil obviously does not extend beyond Brazil’s borders. Furthermore, the scope of the decision is fairly narrow and still permits people to be searched outside their homes for simply smelling like cannabis.

What Brazil truly needs is a modernization of its national cannabis policies. Cannabis prohibition is a failed public policy that has harmed too many lives, and it’s beyond time that Brazil started taking a more sensible approach.