The Officer that Cried “Weed.” Why Some States Won’t Legalize Marijuana.
Picture it; a car is pulled over by the police for a traffic offense—perhaps speeding or not using a turn signal. The officer says he smells marijuana and demands that the driver get out of the car so that he can proceed with his warrantless search. The officer finds marijuana, cocaine, and a firearm. What started as a simple traffic stop has now turned into a full criminal investigation. Something that would have been handled quickly in traffic court now has the potential to be a criminal trial.
When a state legalizes marijuana, its police forces are no longer able to conduct warrantless searches of vehicles based on the smell of marijuana alone. Plain smell has long been an exception to the warrant requirement, and so, some states are hesitant to legalize marijuana because the type of vehicle search authorized by the exception often leads to the discovery of other illicit substances or firearms.
The Entwinement of Searches, Seizures, and Probable Cause Under the Fourth Amendment
The Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause.” Simply put, a government actor—such as a police officer—may not unreasonably search or seize a person, their house, or their belongings. All searches and seizures must be supported by a warrant and probable cause, otherwise the search will be deemed unreasonable. It is one of the few bright-line rules that can be found in the Constitution. Nevertheless, from the inception of the Constitution onward, society has grappled with balancing an individual’s right to privacy with the need to enforce laws and keep the public safe.
How probable cause leads to searches and seizures
As noted above, probable cause is required for an officer to obtain a warrant to search a person, their home, or their car. A search warrant is a document signed by a judge or magistrate authorizing law enforcement to conduct a search on a specified person, place, or vehicle for evidence of a crime. In addition to being supporting by probable cause, this type of warrant must describe the place to be searched with particularity. A search generally occurs in one of two ways: (1) when the government actor physically trespasses onto or into private property or (2) when the government actor invades a person’s reasonable expectation of privacy. A seizure occurs when a government actor takes possession of items during a search. Whether an officer has probable cause is determined by the totality of the circumstances. A reasonable person needs to be able to look at all the circumstances and activities going on and conclude that it is likely criminal activity is happening. Chief Justice Rehnquist, of the United States Supreme Court, explained in Illinois v. Gates that probable cause is a fluid concept that changes and shifts with every case. This is because the totality of the circumstances will influence whether probable cause even exists. It will be different in every situation.
The Interconnection Between the War on Drugs, Warrant Exceptions, and, Weed
The Fourth Amendment created the right for a person to be free from unreasonable searches and seizures. However, it has never been as simple as that. As America became increasingly tough on crime and the “war on drugs” was declared, federal and state governments began to emphasize effective police work: catching criminals and getting drugs off the street. In an effort to support this initiative, The Supreme Court started developing exceptions to the warrant requirement. These exceptions generally allow police to conduct searches without a warrant, so long as there is probable cause.
The vehicle exception
One such warrant exception that is still prevalent today is known as the vehicle exception. Cars are provided less protection than the home because of their ready mobility. Because a car could be miles away by the time an officer gets a warrant, officers are permitted to search a car on probable cause alone. The Supreme Court held in California v. Acevedo that once an officer has probable cause to search the car, that officer may search “anywhere evidence related to that crime may be.” For example, if an officer suspects an individual is driving under the influence of alcohol or drugs, he may search every compartment and container in the car for evidence of the crime of driving under the influence.
Plain view and plain smell
Another warrant exception is known as the plain view exception. Developed in Arizona v. Gates (1987), this exception allows that if an officer is sees something that is readily apparent to be evidence of criminal activity, the officer may seize it without first getting a warrant. When America began cracking down on illegal drugs during the Reagan Era, this exception was expanded to include “plain smell.” Under this exception, if an officer smells something that is indicative of criminal activity, the officer may search for it and seize it without a warrant.
Nearly every state agrees that the smell of marijuana may give an officer probable cause to search a car. Once there is probable cause from the smell of marijuana, the vehicle exception kicks in. Now an officer can search the entirety of the car for evidence of marijuana, with the added ability to seize anything else related to criminal activity that might be in the car, even if it is unrelated to the marijuana.
Does intent matter?
The Supreme Court held in Whren v. United States that the subjective intent of an officer is irrelevant to a traffic stop, as long as there is probable cause of a traffic violation. An officer can be following or targeting a person for an extensive period of time, and as soon as the officer sees the driver commit a traffic violation, that driver can be pulled over. If an officer then claims that he smells something sinister and “cries weed” after he pulls the person over, that officer can search the whole car for the marijuana and anything else he believes could be in there. It does not matter that there is no probable cause for the other crimes he may uncover because the “plain smell” and vehicle exceptions gives the officer the ability to search the whole vehicle. If an officer happens to find something else along the way, that is just a “bonus” that will likely increase the charge from a simple possession charge to an intent to distribute charge or a possession of a controlled substance while armed charge.
As Marijuana is Legalized, Plain Smell Becomes Problematic
While marijuana is becoming legal or decriminalized in several states, the tough-on-crime mentality remains strong in some states, leaving them hesitant to legalize or decriminalize marijuana. One reason is, perhaps, that those states do not want to give up the “plain smell” and the vehicle search exceptions. In 2020 and the first part of 2021, approximately 33-45% percent of all gun-possession arrests in New York City were the result of vehicle stops. The majority of these stops also involved marijuana. However, once marijuana was legalized in the state, the number of gun arrests went from averaging 108 per week to just 53 per week.
The legalization of marijuana has led some states to reconsider the probable cause standards, especially the “plain smell” doctrine. Relying on the smell of marijuana alone is a waning excuse for getting around the Fourth Amendment. Pennsylvania held in a 2021 case that the smell of marijuana alone is no longer sufficient to form probable cause, as it is an unreasonable invasion of privacy. Because medical marijuana was legalized in Pennsylvania, there are times when an officer might smell marijuana that someone is legally possessing, which means no criminal activity is afoot to investigate. In 2019 after small amounts of marijuana became legal to possess in Maryland and Vermont, Maryland held that smell alone is no longer sufficient to form probable cause, while Vermont held that the odor of marijuana did not give police the right to impound and conduct an inventory search of a man’s car. After it legalized marijuana recreationally, Colorado held that police could not use a drug-detection dog’s sniff to justify a vehicle search when the dog was trained to smell for marijuana.
States Do Not Want to Give up Warrant Exceptions
States that want to be tough on crime benefit greatly from the plain view/smell doctrine because they want drugs and guns off the street and these exceptions help them achieve that. They want police to be able to search the entirety of a car for drugs and guns, but if the state legalizes marijuana, its officers will be limited in their ability to do so..
As marijuana becomes legal to possess, it is no longer readily apparent that what the officer is smelling is evidence of criminal activity. The smell alone no longer gives officers probable cause to conduct a search of the vehicle, which means it is unlikely the officer will find evidence of other crimes.