The odor of cannabis from a vehicle, dwelling or person has historically landed pot smokers in serious hot water. Due to long-standing search warrant criteria for cannabis, law enforcement officers have relied upon the smell of marijuana as probable cause for searching and often arresting citizens — even when the cannabis was in raw, unburnt form. However the smell of reform seems to be sweeping the country as judges across the United States are taking steps to challenge previous legislation around probable cause and search and seizure measures when officers smell cannabis.
Judges in Illinois, New York and Missouri are making major waves around the decriminalization of cannabis by amending search and seizure requirements. An Illinois judge went as far as stating, “there are a number of wholly innocent reasons a person or the vehicle in which they are in may smell of raw cannabis,” rendering odor of raw cannabis as an insufficient reason to establish probable cause. Keep reading for more on probable cause, the latest in search warrant criteria for cannabis, and states with robust new search and seizure laws.
What is Probable Cause?
The Fourth Amendment of the U.S. Constitution allows law enforcement to make arrests, conduct searches, and seize property and relevant evidence of a crime when probable cause is established and without a search warrant. Probable cause for cannabis arrests has often been established based on “reasonable suspicion” due to the smell of marijuana alone. It’s not uncommon to hear stories across the country of people who were incarcerated for simply having cannabis on their person or smelling like weed. Many of the accused had either raw cannabis or smell on their person due to transporting legal cannabis after leaving a dispensary or from working with the plant in a regulated manufacturing or processing facility.
Latest in Search Warrant Criteria for Cannabis
In most states with recreational and medical cannabis laws in place, probable cause must generally include more than simply the smell of cannabis. However, driving erratically or too slow or showing other signs of intoxication can still warrant a marijuana search criteria.
Some States Reviewing Marijuana Search Criteria
In November 2021 lawmakers in Illinois determined that the scent of marijuana was no longer considered probable cause for a warrantless search of a motor vehicle. The ruling came after a Whiteside medicinal marijuana patient was pulled over and ultimately arrested for having 2.6 grams of cannabis in his vehicle. Many residents and lawmakers in Illinois say this new ruling was an important decision that can have a historic impact for patients in Illinois.
Building upon the states 2018 vote to legalize cannabis, in 2021 lawmakers pushed legalization further though a simple, one-page bill stating, “…the odor of marijuana alone shall not provide a law enforcement officer with probable cause to conduct a warrantless search of a motor vehicle, home, or other private property.” Thanks to this legislation, cannabis users in Missouri can now breathe easier knowing that the smell of cannabis alone is no longer grounds for search, seizure, or arrest.
Passing a legalization bill in March 2021, the state of New York also removed the smell of cannabis as reason for probable cause. NY law enforcement officers must now rely upon more than just a keen sense of smell to obtain a warrant to search a motor vehicle. Only if the driver is visibly impaired or visibly seen consuming cannabis will officers search and arrest someone operating a motor vehicle.
In 2019, a Pennsylvania judge declared that state police no longer had grounds to search a vehicle due to the aroma of weed. Because the smell of weed is no longer indicative of an illegal act due to cannabis legalization, Pennslyvanians can breathe easier when in transit from a dispensary or otherwise.
Massachusetts is a long-time opponent of search and seizing cannabis due to odor alone. In a pair of court decisions dating back to 2014, Massachusetts Supreme Judicial Court determined that warrantless searches of vehicles based upon an officer’s perceived smell of cannabis no longer justified an arrest. Further, in the first decision, the judge went on record to call the officers claim “dubious” given that it’s less than likely that law enforcement can tell the amount of cannabis they smell is more than the legal amount a person can lawfully transport, which is 1 ounce.
In 2019, Vermont’s Supreme Court also made a landmark ruling to reverse traditional search and seizure requirements. Said to further address racial injustice and discrimination, Vermont lawmakers concluded that the faint odor of marijuana in a car does not justify its seizure by the state. Highlighting the fact that states can be held liable for illegal search and seizures, lawmakers made the right decision to end discriminatory searh and seizure practices.
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