With growing legal and cultural space for cannabis, can the mere smell of the stuff still be sufficient cause for a search that could potentially land you in jail? The answer is that the courts are divided on this question. Meanwhile, cannabis attorneys warn against the fatal error of consenting to a search.
The distinctive odor of cannabis has long been a give-away exploited by law enforcement to justify a search of one’s vehicle, home or person. Many lives have been destroyed by this self-revealing nature of the plant.
The matter has been before the courts many times, with some rulings favorable and others not. Happily, 2021 closed with a ruling from Pennsylvania’s high court on the side of the Fourth Amendment on this question.
Fourth Amendment victory in Keystone
On Dec. 29, the Pennsylvania Supreme Court ruled that the smell of cannabis by itself cannot be the basis to justify a warrantless search.
“The odor of marijuana alone does not amount to probable cause to conduct a non-warranted search of the vehicle but, rather, may be considered as a factor in examining the totality of the circumstances,” Chief Justice Max Baer wrote, according to NBC Philadelphia.
The defendant in the case, Timothy Oliver Barr II, was stopped in a car by state troopers in Allentown in November 2018 for a minor traffic violation—failing to stop at a solid white line. But the officers said they could smell cannabis at the car window.
A loaded handgun and a small bag of cannabis—less than one gram—were found in the subsequent search of the vehicle. Pennsylvania has had a medical marijuana law since 2016, and both Barr and his wife (who had been at the wheel) showed their cards, indicating that they were enrolled in the state program. But the cannabis was in a plain unmarked baggie, with nothing to indicate it was purchased at a licensed dispensary. And in any event, the Pennsylvania program bars actual herbaceous cannabis. Charges were brought against Barr.
Swayed by the testimony of Dr. David Gordon, who had issued the medical marijuana cards and stated that smell alone could not indicate illegally obtained cannabis, the Lehigh County Court issued an order to suppress the evidence. But prosecutors argued that cannabis “has not lost its ‘incriminating’ smell by virtue of its legality for some,” and appealed to the state Superior Court to vacate the suppression order. This was granted in September 2021.
The Superior Court decision was just reversed by the Supreme Court. The order suppressing the evidence is now reinstated. The Supreme Court ordered the case remanded to the Lehigh County Court “for proceedings that are consistent with this opinion.”
Confused case law
This matter has been batted about by the courts for years—with widely varying results from state to state.
In a ruling hailed as landmark by rights advocates in the Green Mountain State, the Vermont Supreme Court in January 2019 found unanimously in favor of an African American motorist who challenged a March 2014 stop by a state trooper as unlawful and racially motivated. The ruling found the police may be held liable for the improper search—which was carried out with the justification that the officer smelled cannabis.
The motorist, Gregory Zullo, was pulled over in Rutland County—again on a minor traffic violation. But again, the state trooper said he smelled cannabis, and on that basis had the car towed and searched. The search turned up a small pipe with cannabis residue. Zullo was not charged, but had to pay $150 to recover his vehicle.
The case wound up before the state Supreme Court when Zullo, represented by the Vermont ACLU, sued for damages, arguing that the stop was racially motivated. The high court remanded the case back to the lower court for reconsideration in light of its ruling.
In June 2019, the state of Vermont reached a $50,000 settlement with Zullo.
On the other hand, in December 2018, the Kansas Supreme Court upheld a cannabis conviction in a case that similarly relied on supposed olfactory evidence to justify a search. Worse, this case actually extended to a private home the accepted police practice in Kansas that the odor of cannabis can justify the search of a vehicle.
Douglas County resident Lawrence Hubbard was found guilty of possession of marijuana and drug paraphernalia, which led to a term of probation. Thanks to the state high court ruling, his conviction stands.
The case began in November 2013, when a police officer followed Hubbard home, mistaking him for someone with an outstanding arrest warrant. But as they cleared up the misunderstanding at his front door, the officer allegedly detected the smell of cannabis, and carried out a “security sweep.” This turned up a roach and bongs—which were then used to justify obtaining a warrant for a more complete search, which uncovered 25 grams stored in a closed Tupperware container locked inside a safe in Hubbard’s bedroom closet.
Then there was the horrific case of Bob and Teresa Almond, who had lived in their home in the Alabama town of Woodland for 27 years, raising children and running a small business there, with back-yard chicken coops. Their modest dream of comfortable retirement in the house came crashing down on Jan. 31, 2018. That day, the Randolph County Drug Task Force raided their home—supposedly on the basis of smelling cannabis.
The raid—in which the home was ransacked—revealed a small quantity of cannabis, estimated at $50 worth. The charges brought against the couple were all dismissed, but the home was forfeited—seized by the county. The Almonds have filed a federal civil rights lawsuit against the Randolph County Sheriff’s Department, which remains pending.
There have been two relevant US Supreme Court rulings—and they went different ways.
In March 2013 the Supreme Court ruled 5-4 in Florida v. Jardines that evidence from a search warrant obtained on the basis of a drug-sniffing dog alerting to a home from the outside was inadmissible. Charges were dropped against Joelis Jardines, whose Miami indoor grow operation was uncovered in the search.
But in an April 2014 decision in Navarette v. California, the US high court ruled 5-4 that a traffic stop that led to a cannabis arrest was constitutional because police had reasonable suspicion the driver was intoxicated. Charges for 30 pounds of cannabis found in the truck were upheld against Lorenzo Prado Navarette of Mendocino County.
Legal advice: Shut the fuck up
The firm Pot Brothers at Law, based in California’s Orange County, really is made up of a couple of brothers—Marc and Craig Wasserman, specializing (as you might imagine) in cannabis cases. They’ve developed a seminar on the “etiquette of engaging with law enforcement and how to shut the fuck up when cops ask questions,” in the words of Marc Wasserman. He tells Cannabis Now that they most recently gave the presentation earlier this month at the CannaCon Northeast Cannabis Expo in New York’s Javits Center. “We’re looking to do our seminar all over the place,” he says.
Asked about the smell factor, he says: “The case law is divided, and it varies from state to state. Here in California, smell alone is no longer considered probable cause for a search. And when legalization passed in New York last year, a directive similarly went out to the police that they can no longer use smell to justify search.”
“That’s why it’s so important to not consent to a search, and to keep your mouth shut,” he continues. “If you consent to a search you will never be able to fight the search. The more someone talks or consents, the more you wipe away defenses that you might be able to use.”
“The Fourth Amendment protects us from unreasonable searches and seizures, and the Fifth Amendment protects us against self-incrimination. But people have learn to utilize their Fourth and Fifth Amendment rights. It’s so important. Even when you think you’re doing something legal, you’ve got to shut the fuck up.”
In a video posted to the Pot Brothers’ Instagram page in October 2019, Marc expounded on this point with an example: “We had a client today who was sitting in a car outside a hotel when a cop came up on him and said she smelled weed... And she asked him, ‘Do you have any weed in the car?’ And he answered, ‘I’ve got a little.’ He should have said ‘I’m not discussing my day.’ When she searched the car based on that statement, to see if he had a little—he had five pounds in the trunk. The judge specifically said that if he hadn’t said he had a little, the case would have been dismissed. It would have been unreasonable search and seizure if it was based on the smell alone. He should have shut the fuck up!”
The video ends with this exhortation: “Shut the fuck up and don’t fuck yourself, OK?”
Cross-post to Cannabis Now
Photo by prensa420
Comments
Minnesota high court: odor doesn't justify warrantless search