In our earlier instalments of ‘The Odor of Probable Cause,’ Part 1 & Part 2, we learned the upshot of the Pacheco and Lewis decisions is that even decriminalization laws can alter the probable cause analysis when it comes to cannabis possession, at least in the context of a search following an arrest.
When taken together, the decisions in Pennsylvania and Maryland provide a framework under which courts can recognize that state cannabis legalization and/or decriminalization laws may prohibit law enforcement from developing probable cause upon allegations of scent alone.
Hopefully, other courts across the country will build on these decisions in the future.
Salt-Baked Staff – Matt Crawley
Both THC-rich cannabis and hemp come from the same plant genus and have identical, or nearly identical, scents. To the naked eye, or even the trained nose of a drug dog, the two are indistinguishable.
Virginia Abrogates the Plain Smell Doctrine Through Statute
The State of Virginia has gone one step further than the courts in Pennsylvania and Maryland, passing a law this month that would prohibit police stops on the basis of the odor of cannabis. The bill is awaiting the signature of Virginia Governor Ralph Northam.
Senate Bill 5029, and its companion House Bill 5058, were passed out a special legislative session. Specifically, language in both bills states that “no law-enforcement officer may lawfully search or seize any person, place, or thing solely on the basis of the odor of marijuana and no evidence discovered or obtained as a result of such unlawful search or seizure shall be admissible in any trial, hearing, or other proceeding.”
The foregoing, if passed into law, will codify the end to the plain smell doctrine in Virginia. This is a huge step in the right direction, and one that other states will hopefully adopt.
In addition to how state legalization and decriminalization laws are bringing changes to our criminal justice system, so too is the federal legalization of hemp.
Related Article: America’s War on Drugs: Blooming Legal
For example, in Texas, Florida, Georgia, and Ohio, reluctant prosecutors have refused to pursue low-level cannabis possession cases as it is difficult to establish distinction between hemp and THC-rich cannabis. Prosecutors in Florida have also indicated that the legalization of hemp has created issues for drug-sniffing dogs.
To get past the foregoing issues, prosecutors are urging a new “odor-plus” standard (akin to that discussed in the Pennsylvania case above) in which the scent of cannabis is one of a number of factors that can be used in determining probable cause.
Hemp could be the biggest problem
While cannabis legalization and decriminalization laws have brought about legal decisions tamping down the plain smell doctrine, it is perhaps the legalization of hemp that poses the biggest problem for the long-held doctrine.
Both THC-rich cannabis and hemp come from the same plant genus and have identical, or nearly identical, scents. To the naked eye, or even the trained nose of a drug dog, the two are indistinguishable. As a result, if the two substances cannot be readily distinguished from one another, then the presence of scent, without more, should not be evidence of criminal behavior.
Salt-Baked Staff – Matt Crawley
Both THC-rich cannabis and hemp come from the same plant genus and have identical, or nearly identical, scents. To the naked eye, or even the trained nose of a drug dog, the two are indistinguishable. As a result, if the two substances cannot be readily distinguished from one another, then the presence of scent, without more, should not be evidence of criminal behavior.
Admittedly, the hemp argument does not yet appear to have been tested in the courts. Presently, cannabis legalization has never been more popular among Americans. And, just as the old Bob Dylan song goes, “For the times they are a-changin’.”
Recent polls have seen support climb over 60%. These winds of change are beginning to blow into our courthouses and legislative bodies. One can hope that these trends will continue as more states move to allow the use of cannabis, whether medically or for adult use, or otherwise decriminalize possession of the substance.
What can be said with growing confidence is that the purported odor of cannabis alone should no longer be a tool for law enforcement to make an end run around the Constitution.
This is our last instalment on the topic ‘The Odor of Probable Cause‘ by Utah’s Leafy Lawyer.
