Is ‘Cannabis Odor’ Still Probable Cause for Searching Your Vehicle?

If you’ve been smoking weed for a long time, it’s highly likely you have found yourself in a scenario where you are getting searched by a police officer for one reason or another. One of the most daunting experiences for any stoner is getting pulled over with weed in the car; because as we know all too well, all a cop needs to do is simply claim that they “smell marijuana” in your vehicle and next thing you know you’re standing on the side of the road while they call for backup and tear your car apart looking for anything illegal they can find.

Is it fair? Of course not! But the more important question here is whether this age-old search tactic is legal or not, and if it will hold up in the court of law. The answer: it’s complicated and depends on where you are, who you ask, and the specifics of your situation. Police officers have relied on odor as probable cause for decades, and it was justified when cannabis was illegal across the board. But if you now live in a state where cannabis has been legalized, especially for recreational use, marijuana odor is no longer an ironclad reason to search without a warrant, because possessing it is not a crime in those states.

Cannabis laws in the USA can certainly be complicated, especially when it comes to knowing your own rights and how to protect yourself from unreasonable actions by law enforcement. We hope this article provides the insight you were looking for. To read more stories like this one, and for exclusive deals on flowers, vapes, edibles, and other products, remember to subscribe to The THC Weekly Newsletter. Also save big on Delta 8Delta 9 THCDelta-10 THCTHCOTHCVTHCP & HHC products by checking out our “Best-of” lists!


The 4th Amendment and Probable Cause

Citing the Constitution of the United States of America, the fourth amendment is as follows: “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 warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

It’s generally accepted that a warrantless search of someone’s home is unjust, but the extent to which a person’s vehicle is protected under this statute remains up for debate. Despite pretty clear-cut verbiage in the fourth amendment, there exists a clause known as the “automobile exemption”. The automobile exemption was first established in the 1925 supreme court case, Carroll vs The United States.

Simply put, the automobile exception states that, because automobiles can move quickly from one location to another – carrying contraband and evading law enforcement – it would be unrealistic to require officers to get a warrant before searching the car. In a state where cannabis is illegal, the smell of cannabis is enough to lead officers to reasonably believe that a crime is being committed.

One might assume that this exception means that police officers have unlimited access to search the cars of all citizens as they see fit, but that is NOT the case. There are stipulations and it’s important to know your rights whenever you’re on the road. “The automobile exception is not a categorical one that permits the warrantless search of a vehicle anytime, anywhere, including in a home or curtilage,” says Supreme Court Justice Sonia Sotomayor.

So again, there is a lot of ambiguity there because the conditions determining whether the automobile exception can be used vary dramatically from state to state, county to county, and even city to city. Then it comes down to if the person pulled over is even committing a crime, which depends on they much you have, whether they have a medical card or not, if something was left in plain sight, or if the officer was given permission to search the car, or if another crime was being committed.

States can always implement higher standards than what is required by the fourth amendment, to further protect residents from unlawful searches and seizures, but they cannot allow conducts that violate the constitution in any way. If one believes their fourth amendment rights have been violated, a bivens action can be filed against federal law enforcement officials.

Recent Ruling in Illinois

What sparked my renewed interest in this topic is a news report I read from the Chicago Sun Times, in which authorities pulled over a vehicle and conducted a warrantless search that led to the arrest of the vehicle’s passenger for cannabis possession.

According to the court order, an Illinois State Trooper pulled over a grey Chevy Impala on Interstate 88 in rural Whiteside County on December 3, 2020. During the process of requesting identification, the trooper stated that he smelled “raw cannabis”, at which point the passenger, defendant Vincent Molina, provided his state-issued medical cannabis card.

Notwithstanding, the police officer proceeded to search the vehicle. He found 2.6 grams of weed and Molina was arrested for misdemeanor possession. For obvious reasons this arrest is utter nonsense, starting with the fact that recreational cannabis was legalized in Illinois on January 1, 2020, almost a full year before Molina’s arrest. Additionally, Molina was not just a recreational user but a medical patient.

Molina’s defense lawyers, James Mertes and Nichalas Rude, filed a motion to suppress the evidence, saying “the cannabis odor could not be used as a basis for police to search vehicles after the recent legalization of cannabis.”

Associate Judge of the 14th Judicial Circuit, Daniel J. Dalton, agrees with his attorneys, and ruled that Molina, “…did not indicate any other reason for his suspicions or his search other than the smell of raw cannabis,” and that, “Molina did provide a medical use license to (the trooper) prior to the search of the vehicle and there are a number of wholly innocent reasons a person or the vehicle in which they are in may smell of raw cannabis.”

All in all, it’s a pivotal case for The Prairie State which helps determine what is considered probable cause and sets new standards for how officers will conduct future searches and seizures. “I am honored to have been part of such an important decision. This case was much more important than me,” Molina said. “It was about our right to be free from unreasonable searches for legal conduct. I am just grateful to have been a part of protecting that right.”

No Confusion in New York

New York is one of the few states that actually wrote into their legalization law, which passed in March 2021, that cannabis odor is can no longer be used by law enforcement as a sole legitimate reason to conduct a vehicle search.

Under the updated policy, the only time officers are permitted to search a vehicle (as it pertains to cannabis), is if they believe the driver is under the influence of weed, or if they physically see the driver smoking or vaping while operating a vehicle, or while sitting inside of a parked vehicle.

Additionally, “the trunk may not be searched unless the officer develops separate probable cause to believe the trunk contains evidence of a crime.” So, if you want to be extra careful in NY, make sure to keep your stash in the trunk.

“I don’t think any other state was as clear-cut in removing marijuana very clearly from the universe of things that law enforcement can use, and certainly the odor of marijuana, as a reason to search a vehicle,” said Melissa Moore, New York state director for the Drug Policy Alliance.

Cases in Other States

In the other 18 states that have legalized cannabis, as well as Washington D.C., cases where cannabis odor was used as probable cause are still clogging up the court systems. Luckily for us, most of the court ruling have been in favor of the defendants.

For example, in Maryland, only medical cannabis is fully legal but possession of 10 grams or less for recreational use has been decriminalized since 2015. For reference, decriminalization means that even though cannabis is still not completely legal, it’s now a civil matter, rather than a criminal one, if you get caught with it. In April, an appellate court determined that “odor of marijuana by itself does not provide reasonable suspicion of criminal activity”.

In Colorado and California, the Supreme Courts throw out cases like this all the time, claiming there is no justification for searches or drug sniffing dogs to look solely for cannabis, now that it is legal in both of those states and possessing it is no different than having unopened containers of alcohol in your car.

In Michigan, another legal, adult-use state, the high court explicitly stated that “evidence of illegal guns and drugs should not be suppressed,” and that cannabis odor was “sufficient to justify a warrantless search.” Same goes for Florida, where only medical cannabis is legal but discussions of a recreational market are looming.

Rooted in Racism

As with many of our current drug laws, it’s safe to assume that there are some racist undertones to the way vehicle searches are often conducted. Statistics do exist to cement this theory, for instance, black residents make up 50 percent of the population of Newark, New Jersey, but were involved in roughly 80 percent of police department vehicle searches. Overall, policies that hinder automobile searches are supported by the nation’s most prominent civil rights activists.

“Police believe that if they stop more Black people, they’re going to pick up more drugs, because that’s what they’ve been taught,” said Meghan Matt, who works for a criminal defense and civil rights litigation attorney in Baton Rouge. “But it is statistically evident that Black and White people use marijuana at the same rate.”

Data from as far back as 1999 states that African American and Hispanic motorists are pulled over at rates much higher than whites, yet those searches are “equally or less likely to yield contraband.”

Kelsey Shoub, an assistant professor of political science at the University of South Carolina explored this theory further in her 2018 book, Suspect Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race; which examined 14 years-worth of traffic stop data from North Carolina (not an error, research was not conducted in the same state as the University).

Shoub’s data was very telling and left little wiggle room to assume anything other than a systemic, racially-charged issue that seriously needs overhauling. Overall, black Americans where 63 percent more likely to be stopped on the road, even though they drive 16 percent less than whites. Taking into consideration that difference of time spent on the road, blacks where about 95 percent more likely to be stopped.

Furthermore, black Americans were 115 percent more likely to be searched during traffic stops than white Americans (5.05 percent for blacks and 2.35 percent for whites), BUT, contraband was found more often in the vehicles of white drivers.

“For me, there are a few big takeaways from the data, and the first two are probably not surprising,” says Shoub. “The first is that ‘driving while black’ is very much a thing; it’s everywhere and it’s not just a North Carolina or a Southern problem but across the United States,” Shoub says. “The second thing is that it appears to be more systemic than a few ‘bad apple’ officers engaged in racial profiling.”

Thoughts from Law Enforcement

“It’s an extraordinarily gray area,” said Mark Reene, prosecuting attorney for Tuscola County, Mich. “These are going to be decided very much on a case-by-case basis, and they’re going to be very fact-dependent. And what’s ultimately going to happen is this matter will end up in front of the United States Supreme Court.”

Because there is so little clarity on this subject, officers are increasingly reluctant to conduct vehicle searches, which means that potentially dangerous contraband is going unnoticed at a much higher rate. Making matter worse for law enforcement is the variation in laws, like different restrictions in different counties or only being able to search certain areas of the car – which makes it all the more confusing when an officer is working in the moment.

“It’s going to, without a doubt, lead to less searches of vehicles, which would then lead to less guns being recovered and significant drugs being recovered,” said Mary Tanner-Richter, vehicular crimes bureau chief in the Albany County district attorney’s office in New York. “I mean, I think it’s hard to argue against that being the reality we’re going to face.”

Tanner-Richter also mentioned that during her 16 years working for the state’s traffic safety division, she has seen a large portion of firearms and hard drugs confiscated during what started as routine traffic stops. Until now, her office encouraged police to utilize this search protocol whenever possible.

“That’s how they found Ted Bundy. That’s how the Oklahoma City bomber got caught. And quite often, that’s how they’re getting guns and drugs off the street,” she added. “They [police] are now losing a huge tool in their investigation of drugs and guns.”

Conclusion

Again, there is no clear-cut answer on whether cannabis odor can be used as probable cause to conduct a warrantless search of a vehicle. It all depends on where you are, what products you have and how much, who pulls you over, and so forth. It does seem as though the odor excuse is carrying less weight as legalization sweeps through the nation.

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Disclaimer: Hi, I’m a researcher and writer. I’m not a doctor, lawyer, or businessperson. All information in my articles is sourced and referenced, and all opinions stated are mine. I am not giving anyone advise, and though I am more than happy to discuss topics, should someone have a further question or concern, they should seek guidance from a relevant professional.

The post Is ‘Cannabis Odor’ Still Probable Cause for Searching Your Vehicle? appeared first on CBD Testers.

The Key to Legal Marijuana Is In Laws for Personal Sovereignty

When it comes to cannabis legalizations, different factors can be at work in different locations. In some places, sick kids pushed through medical legalizations, in other places, recreational legalizations were voted in by the population. In a few cases it was something else though, it came through the courts. In these cases, legal marijuana came as a result of personal sovereignty clauses in national constitutions.

It would be great if we were all afforded the right to legal marijuana due to personal sovereignty rights in our specific countries, but unfortunately, this only works in some places. Luckily, the general expansion of the industry has made it so getting many products is much easier, with much more available. Take delta-8 THC, for example. No one knew what the stuff was five years ago. And now? This alternate, less intense, form of THC, flies right off the shelves. This goes for other cannabis compounds as well. Lucky for you, we’ve got them all, so take a look at our deals on delta-8 THCdelta-9 THCTHCVTHCPdelta 10HHCTHC-O and a broad range of other cannabis related products.

What does personal sovereignty mean?

Personal sovereignty can be summed up like this: “To be sovereign over one’s self is to be free of the control or coercion of others – to truly direct one’s own life.” In other words, personal sovereignty is self-ownership, and comes with the idea that each person is their own piece of property belonging to themselves. This includes legal and/or natural rights for bodily integrity, and to be the sole controller of one’s life.

As far as what it means to have legal or natural rights, these are the two types of rights afforded to individuals. Natural rights are inalienable rights, or what some would refer to as ‘god-given rights’. These are not supposed to be specific to a particular government or set of laws, but are instead considered fundamental laws, or human rights. As inalienable rights, they cannot be taken away by a government’s laws, unless the individual is causing harm to someone else. In the US constitution, inalienable rights include “life, liberty, and the pursuit of happiness.”

Conversely, legal rights are those afforded by a specific government. They are governed by human laws, and are able to be changed or repealed if the government feels the need. These laws encompass everything not related to personal freedoms, like traffic laws, gun laws, trade laws, criminal laws, and so on.

personal sovereignty

Personal sovereignty is a principal of different philosophies in politics, namely anarchism, liberalism, and libertarianism. Clauses show up in many constitutions, specifying what the government sees as inalienable rights. Now, this concept is interesting. If the idea of ‘inalienable rights’ actually existed as I just said, they would have to be consistent everywhere. After all, if they’re not related to local laws, then they should be the same throughout the world. But this isn’t the case. And, in fact, the particular inalienable rights afforded to populations, are decided within a constitution, meaning they are specific to a given government.

Even so, they are thought of as separate from legal rights. Though this detracts from them a bit, they still hold true where they’re available. While the US doesn’t have strong principals for this in its constitution, other countries do. And three times now, at least, these principals have been used to either legalize recreational cannabis, or reduce penalties to the point of practically being legal.

How Mexico gained legal marijuana using personal sovereignty

The mess of Mexico and cannabis legalization has been going on for a few years now. At the end of 2018, the Mexican Supreme Court ruled in favor of defendants in two cases involving the right to use cannabis recreationally. These two cases were really the last of five consecutive cases, starting in 2015, all if which had to do with the right of an individual to consume cannabis in their own private life.

In Mexico, five consecutive Supreme Court rulings on the same topic, ruled on in the same way, become legally binding for all lower courts, and override legislative laws. This is called jurisprudencia. As such, in these situations, the government is then tasked with coming up with new legislation to be in line with the court rulings.

So, what was the basis for these court rulings? In the Mexican constitution, personal development is a given, or inalienable right. It reflects a specific aspect of personal sovereignty afforded by the Mexican government to its people. People must, by the constitution, be able to choose their own recreational activities in life, and they must be able to do this without government intervention. In its ruling, the Supreme Court specified that the psychoactive effects of cannabis are not enough to provide justification for prohibition. The final ruling officially made the prohibition of personal recreational cannabis use, unconstitutional.

For anyone paying attention, this didn’t come and go quietly. The government has repeatedly nixed its responsibility in coming up with written legislation, first asking for extensions for 2.5 years, and then missing a deadline without even requesting an extension this past April. This move effectively gave the Supreme Court the ability to simply drop the prohibition law, which it did. Since the Supreme Court doesn’t write legislation, this was done in a small way, legalizing the personal cultivation, possession, and use of cannabis, but leaving everything else as illegal, until the government sees fit to do its job.

Mexico cannabis

How Georgia gained legal marijuana using personal sovereignty

The first thing that makes the title to this section interesting, is simply the idea that a former Eastern Bloc country, is actually weed-legal. No other truly legalized location exists on either the continents of Europe or Asia, yet somehow, a recreational legalization snuck in, in a place completely unexpected, and not in concert with the area around. But that’s what happened, when Georgia became the 3rd legalized recreational country. Here’s the story.

Up until 2018, Georgia had some of the stricter laws concerning cannabis. Users could incur up to 14 years in prison for simple possession and use, with forced drug tests being given on 100+ people a day. Georgia had a zero-tolerance policy when it came to marijuana, and the country was making a lot of money from fines, collecting a massive $11.3 million in one year alone. Cannabis activists in the country were fighting these forced tests, as well as pushing for decriminalization measures, and to have dosage calculations made by law. It was even being spoken about politically when elections came around in 2018, with a law being drafted to allow cannabis exports.

All of what was going on was blown out of the water by the Constitutional Court in 2018. That year, amid all the other cannabis talk, the Court made a ruling in a case that its unconstitutional to punish a person for using cannabis, since it doesn’t hurt anyone else. The ruling stated that a punishment for using cannabis is restrictive of personal freedoms. Once again, personal sovereignty pushed through a legalization measure. The Court went on to state in its ruling, that unless a 3rd party is being affected, or use laws are broken, no penalties will be given out for using cannabis at all.

It says something for the stance of the Constitutional Court, that a year prior to this legalization, it was already calling to decriminalize cannabis. This shows that even in its stricter days, there was already a break towards liberalism. However, a major detraction of this legalization, is that it only applies to possession and use.

Cultivation and supply crimes were not affected by the ruling, meaning Georgia has some terribly inconsistent cannabis laws, allowing for its legal possession and use, but without the ability to buy, sell, or grow it. There is also no official regulated market in place. Chances are that written legislation will update soon enough to make this a more tenable system. For now, Georgia has the designation of becoming the 3rd legalized country, the first in Europe or Asia to do so, and the first of the former Eastern Bloc countries to adopt a pro-cannabis policy.

How South Africa gained nearly legal marijuana using personal sovereignty

South Africa is a little different because the country didn’t technically legalize anything. However, due to Supreme Court rulings, the country has some of the most relaxed cannabis laws, that in many ways do resemble a regular legalization. Much like with the two countries previously mentioned, since it came through the court system, and this requires legislation to be written, the exact specifications of this new law are still unknown. Anyway, here’s the story of South Africa and cannabis decriminalization.

South Africa marijuana

Funny enough, all three of the countries mentioned, officially changed policies due to Constitutional Court decisions made in 2018. South Africa’s came in September of 2018. The court ruling in question was originally made on March 31st, 2017, but not by a constitutional court. In this case, the judge of the local court ruled that it was unconstitutional to prevent private cultivation and use of cannabis. The reason being, that such a criminalization was an infringement to inalienable rights of personal privacy, and therefore, not justifiable.

The right to privacy was the central issue in the 2017 ruling. The right to privacy is an inalienable right of personal sovereignty afforded to South Africans through section 14 of their Bill of Rights. The clause states that every individual has the right to lead their own private life, without interference by the government or other private institutions. This is what the court stated to back up its point:

“A very high level of protection is given to the individual’s intimate personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to this most intimate core of privacy, no justifiable limitation thereof can take place… This inviolable core is left behind once an individual enters into relationships with persons outside this closest intimate sphere; the individual’s activities then acquire a social dimension and the right of privacy in this context becomes subject to limitation.”

Of course, this was just a regular court. Appeals rolled in after the decision, leading the judgement to be heard by the Constitutional Court in 2018. When the Constitutional Court upheld the lower court’s decision, the new ruling became law, and the private cultivation and recreational use of cannabis was heavily decriminalized. It is said that police can still arrest a person for private cannabis crimes, but that the person can use this ruling as a defense in court. The new bill will hopefully shed more light on this aspect. This is different from Mexico or Georgia, where the lower courts can no longer entertain such cases. An official bill is still being worked out which will specify the particulars of the new law. Technically, South Africa had 24 months to write a bill before the court ruling automatically took over. It is now 3.5 years later, and there is no bill yet, but this is likely due to corona.

Conclusion

This idea that legal marijuana use can come through court rulings on personal sovereignty, is kind of cool. Take Chile, and its endeavor to create a new constitution. Should the new constitution have a personal sovereignty clause, it would open the door for cannabis legalization.

If your next question is whether the US has such a provision, the sad answer is no. The farthest we get in the US is the guarantee for the ‘pursuit of happiness’. Now, I know cannabis sure makes me happy. And it could certainly be argued in court that not allowing legal marijuana is a detraction of personal sovereignty related to the pursuit of happiness…but as of yet, it has not been done.

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DisclaimerHi, I’m a researcher and writer. I’m not a doctor, lawyer, or businessperson. All information in my articles is sourced and referenced, and all opinions stated are mine. I am not giving anyone advise, and though I am more than happy to discuss topics, should someone have a further question or concern, they should seek guidance from a relevant professional.

The post The Key to Legal Marijuana Is In Laws for Personal Sovereignty appeared first on CBD Testers.