The odour of marijuana, without more, does not provide law enforcement officers with the requisite probable cause to arrest and perform a warrantless search of that person incident to the arrest.
Building on a previous ruling
This ruling builds on a previous one made last summer by the same court, which barred police officers from arresting and searching a person based on an observation of an amount of cannabis less than 10 grams, which is below the criminal threshold according to decriminalization policy made in 2014.
Following the ruling, the state has argued that marijuana smell could indicate the presence of a larger amount of the substance, which gives police probable cause to search for more. In 2017, the court agreed that police officers could search vehicles applying the law that says there is a reduced expectation of privacy in an automobile.
Part of the ruling reads:
One of the justifications for the automobile exception is the diminished expectation of privacy one enjoys in his or her vehicle. In juxtaposition, there is a heightened expectation of privacy enjoyed in one’s person. Arresting and searching a person, without a warrant and based exclusively on the smell of marijuana on that person’s body or breath, is unreasonable and does violence to the fundamental privacy expectation in one’s body; the same concerns do not attend the search of a vehicle.
Judge Barbera further wrote, “for such a search to be supported by probable cause, the police must possess information indicating possession of a criminal amount of marijuana.”
Protecting legal marijuana states from federal interventions
This ruling comes at a time when the U.S. House is voting to protect legal marijuana states from federal interventions.
A press release from NORML yesterday revealed that the U.S. House of Representatives by voice vote passed a comprehensive amendment that bars the Department of Justice from using “taxpayer dollars to enforce federal anti-marijuana laws” in most states that regulate the either recreational or medical use of cannabis.
According to NORML Political Director Justin Strekal, the vote is the most significant on marijuana policy reform.
This is the most significant vote on marijuana policy reform that the House of Representatives has taken this year. The importance of this bipartisan vote cannot be overstated as today; nearly one in four Americans reside in a jurisdiction where the adult use of cannabis is legal under state statute. It is time for Congress to acknowledge this reality and retain these protections in the final spending bill, Strekal said.
Strekal noted that the “era of marijuana criminalization is drawing to a close,” as the House Leadership prepares to bring the legislation to the floor to end prohibition.