Now that the vast majority of US states have some form of legal cannabis, judges across the country are ruling that the odor of cannabis is no longer probable cause for a police search.
This week, two judges in two different states ruled that police can no longer use the smell of cannabis alone as probable cause for a search.
In Massachusetts, the state Supreme Judicial Court (SJC) ruled that the odor of unburnt cannabis does not constitute probable cause for a search. This ruling was handed down in the case of Gregory Long, who was arrested in 2017 and charged with co-running an illegal cannabis grow hidden in an Amherst warehouse.
After raiding the illegal grow-op, police charged Long with trafficking over 50 pounds of weed. In his defense, Long's attorneys argued that police had no legitimate way to identify whether “the odor emanating from the windowless, 11,000-square-foot, cinder-block warehouse was the product of the legal marijuana use, possession, or cultivation,” according to the Boston Globe.
The court agreed with the defense, ruling that “our appellate courts consistently have held that the odor of marijuana, burnt or unburnt, without more, is insufficient to establish probable cause that a crime is being committed.”
Although the court agreed that police had no reason to assume the smell of weed was associated with illegal activity, the justices agreed that there was still ample cause to justify the warehouse search. Police also noticed changes to the warehouse's ventilation system that were consistent with cannabis cultivation, and also discovered that several vehicles parked at the warehouse were registered to former cannabis offenders. For these reasons, the court upheld Long's conviction.
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The ruling did not work out in Long's favor, but it did uphold a precedent confirming that police can no longer use the smell of weed as an excuse to conduct a search.
In 2011, the SJC ruled that the smell of burnt marijuana alone did not justify a vehicle search, and in 2014, the same court ruled that the odor of unburnt weed did not justify a search. This year, the court clarified that the scent of burned weed would only justify a search if there was other evidence that the driver was under the influence.
“Respecting the will of the voters means that the police should not be investigating marijuana-related conduct that’s not a crime in Massachusetts,” said Matthew Segal, legal director for the American Civil Liberties Union of Massachusetts, to the Globe. “There's nothing in this opinion that says it’s now open season on people who are using marijuana consistent with state law.”
A similar ruling was handed down by a Pennsylvania judge in the case of Timothy Barr, a 27-year-old who was busted with weed and a loaded gun during a traffic stop. Upon making the routine traffic stop, police said that they smelled a strong odor of pot, which gave them the legal right to search the car. Barr displayed his medical marijuana card, proving that he had the legal right to possess cannabis, but the cops proceeded with the search regardless.
Maria Dantos, a Lehigh County Judge, ruled that the evidence in this case was not permissible in court, as “the smell of marijuana is no longer per se indicative of a crime,” the Associated Press reported. Dantos wrote that it was “illogical, impractical, and unreasonable” for law enforcement to suspect illegal activity once Barr showed them his medical marijuana card. “Such actions are merely means of hampering the legalization of marijuana for medical purposes,” Dantos continued.
Defense Attorney Joshua Karoly believes this ruling will also set a precedent against using the smell of weed as probable cause. “This case will put a spotlight on the plain smell doctrine in Pennsylvania which police use far too often to invade citizens’ privacy,” he told the AP.
Now that the majority of US states have legalized some form of cannabis, a growing number of judges are striking down searches justified by weed odor alone. In Miami, police officials notified their officers that they can no longer conduct vehicle searches based solely on the smell of pot. And in New Jersey, cops are re-training their drug-sniffing dogs not to alert on the presence of cannabis.
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