When Possessing Pot Is No Crime, Can the Smell of Marijuana Justify a Search?
Jacob Sullum|Nov. 27, 2013 6:07 pm
Two years ago, in Commonwealth v. Cruz, the Supreme Judicial Court of Massachusetts ruled that the odor of burning marijuana is not sufficient reason for a police officer to order a motorist out of his car. The court noted that under Question 2, an initiative that Massachusetts voters approved by a large margin in 2008, possessing up to an ounce of marijuana is a citable offense rather than a misdemeanor. “To order a passenger in a stopped vehicle to exit based merely on suspicion of an offense,” the court ruled, “that offense must be criminal.” Suffolk District Attorney Daniel Conley nevertheless is asking the court to uphold a car search triggered by the smell of marijuana. Among other things, he argues that such an odor counts as probable cause because possessing small amounts of cannabis remains a crime under federal law. In an amicus brief filed last Friday, the National Organization for the Reform of Marijuana Laws urges the court to reject that argument (citations omitted):
The appellant asks this Court to reverse its holdings in Cruz and its progeny by empowering state law enforcement to ignore the state decriminalization law and enforce instead federal prohibition law. The appellant would enable federal law to justify police searches otherwise illegal under state law….
Enforcing federal prohibition—against the will of a compelling majority of state’s voter rejection of that policy in adopting decriminalization by initiative—violates fundamental principles of federalism and the state constitution’s separation of powers….
State law enforcement derives its authority from state law, its constitution and statutes; the power of local police to detain and arrest, within the outer limits of federal Constitutional civil rights law, is derived from and determined by state law.
Local police cannot evade state law constraints in state court prosecutions by wishing they were federal deputies and pretending their arrestees can be brought to federal courthouses. Allowing state law enforcement to disregard state law, by preferring federal policies rejected by popular initiative and this Court, eviscerates the sovereignty of the people and federalism’s protection of state sovereignty.
The case involves a motorist, Anthony Craan, who was pulled over in June 2010 by state police at a sobriety checkpoint. Trooper Scott Irish claimed to smell “the strong odor of fresh, unburned marijuana coming from the passenger compartment.” After Irish mentioned this, Craan admitted that he had a plastic bag of pot in his glove compartment, which led to a car search that revealed additional marijuana, MDMA pills, and four loose rounds of ammunition. But at the point when Irish decided to search the car, all he knew was that Craan possessed less than an ounce of marijuana, which in itself is not a crime under Massachusetts law.
In addition to seeking refuge in federal law, the prosecutors argue that Irish had probable cause to charge Craan, who admitted that he and his passenger had recently smoked marijuana, with driving under the influence, in which case going through the car would have been justified as a search incident to an arrest. The government also argues that the presence of a little marijuana raises the possibility of more—perhaps enough to count as a misdemeanor under state law. That last argument, like the one based on the federal Controlled Substances Act, would justify a car search whenever a cop smells (or claims to smell) pot, even though possessing up to an ounce has been decriminalized in Massachusetts. He would not even need a dog.
“The 2008 initiative decriminalized possession of one ounce or less of marijuana under State law, and accordingly removed police authority to arrest individuals for civil violations,” Justice Barbara Lenk wrote in the unanimous ruling. “We have held that the odor of burnt marijuana alone cannot support probable cause to search a vehicle without a warrant … we hold that such odor, standing alone, does not provide probable cause to search an automobile.”
Lenk also pointed out that police don’t even have a right to search someone’s car based on the smell of pot under federal law either.
“The fact that such conduct is technically subject to a Federal prohibition does not provide an independent justification for a warrantless search,” Lenk wrote.
The ruling stems from the arrest of Matthew Overmyer, who was illegally searched by cops after a car crash. The police said they smelled unburned marijuana at the time.
Predictably, cops are completely flustered by the ruling.
“How is it any different from stopping somebody with an odor of alcohol on their breath?” asked Wayne Sampson, executive director of the Massachusetts Chiefs of Police Association, tell the Boston Herald. “The same principle should apply.”
Probably because the smell of unburned marijuana would imply that it hasn’t been used, whereas the smell of booze on someone’s breath would be a direct correlation to their usage of the substance. But hey, they are cops so logic isn’t always their strong suit.
“Rulings like this do nothing but handcuff the good guys and free the ones that want to go out and commit crimes against us,” said Bristol County Sheriff Thomas Hodgson. “It is becoming harder and harder for cops to do their jobs and easier for criminals to get the cover they need.”
But others say this is a way to curb the abuses of police forces, who often use the smell of marijuana to justify illegal stops and seizures.
“We’ve seen a lot of abuse by law enforcement officials who use (the odor of marijuana) as an excuse to unreasonably search people who are otherwise not exhibiting any signs of committing a crime,” said Erik Altieri, NORML spokesman.