The smell of burnt marijuana emanating from a car is enough for some federal appeals courts to validate a warrantless search of the whole vehicle.

But the U.S. Court of Appeals for the Fourth Circuit wouldn’t say for sure Feb. 9 how it viewed the issue.

There is a circuit split on the issue. The Fifth and Eighth circuits say the mere odor of burnt marijuana coming from a car can give police probable cause to search the whole car.

The Tenth Circuit, however, says the mere odor of burnt marijuana is insufficient probable cause for such a search, and that other evidence of contraband must be present.

The per curiam Fourth Circuit refused to join the fray, saying in an unpublished ruling that even applying the Tenth Circuit’s standard, the search of the defendant’s trunk was valid.

The warrantless search of the car’s trunk, which turned up heroin and cocaine hydrochloride, was supported by a number of factors.

They included the officer’s discovery of marijuana in the passenger compartment of the car, the driver’s nervousness, the fact he was driving in a known drug trafficking corridor, and the driver’s possession of a flip phone commonly used in criminal activity, the court said.

Judges William B. Traxler Jr., G. Steven Agee, and Clyde H. Hamilton were on the panel.

The Federal Public Defender’s Office represented the defendant. The U.S. Attorney’s Office represented the government.

The case is United States v. Pankey, 2018 BL 44823, 4th Cir., No. 17-4325, unpublished 2/9/18.