Court Says There's Nothing 'Reasonably Suspicious' About The Odor Of Marijuana In A State Where Marijuana Is Legal

from the this-should-be-obvious dept

When cops complain about marijuana legalization being the slippery slope to a crime-ridden, apocalyptic hellhole, they're really only complaining about the removal of one of their favorite excuses for searching vehicles, houses, and people without a warrant.

For years, the odor of marijuana has been a blank check for warrantless searches. But when marijuana possession is no longer a crime, it stands to reason the odor of marijuana is no more "suspicious" than the odor of gasoline or fresh bread or a litter box. These are all just things now -- non-criminal things. And yet, cops can't seem to let this go, even years after the contraband is no longer contraband.

A recent decision [PDF] by an Oregon appeals court -- a state where marijuana has been legal since 2015 -- reaffirms the legality of possessing marijuana and firmly reminds the state's law enforcement they need far more than a whiff of marijuana to engage in further hassling of citizens. (via FourthAmendment.com)

In this case, a state trooper followed his nose to an arrest for drug trafficking. It started with a traffic stop:

Defendant was driving a rental car from Grants Pass, Oregon, to Denver, Colorado. He was stopped for a traffic violation while driving on Highway 140 in Lake County. The trooper who stopped him smelled an “obvious” odor of “marijuana” upon approaching the car. Defendant did not appear to be impaired or intoxicated. Defendant did appear to be nervous—he had shaky hands and a slightly shaky voice when handing over his driver’s license and rental agreement. From training and experience, the trooper knew that Grants Pass is a “source city” for marijuana, that Colorado has a market for “low-cost high-quality marijuana out of Oregon,” and that people “commonly” use rental cars to unlawfully transport marijuana to avoid the risk of forfeiting their own vehicles if caught.

Using nothing more than his "training and experience" and the "obvious" odor of marijuana, the trooper concluded the defendant was trafficking drugs. He extended the stop to ask more questions. The defendant ultimately admitted he was driving 17 pounds of marijuana to Denver, Colorado.

But does all of this (which really isn't that much) add up to "reasonable suspicion?" The court says it doesn't. First, the court says the driver's nervousness is a non-factor.

One of the facts—defendant’s nervousness—is not significant to our analysis. As we have recognized repeatedly, “nervousness alone is entitled to little weight when evaluating reasonable suspicion.”

Nor is the driving of a rental car from one state to another, no matter what the trooper may have imagined the purpose for traveling from Oregon to Colorado was.

As for the fact that defendant was driving a rental car from Grants Pass to Denver, the act of traveling on a public highway known to be part of a “drug trafficking corridor” does not give rise to reasonable suspicion that any particular person traveling on the highway is trafficking drugs.

As the court notes, interstate highways are used by everyone, not just drug traffickers. To assume efficient travel is purely the domain of traffickers is ridiculous.

So it all comes down to the trooper's powerful sense of smell and an odor which -- in the absence of anything else suspicious -- is indicative of nothing, given the state's legalization of marijuana.

With that in mind, we note that, beyond the odor of marijuana being “obvious” when the trooper approached defendant’s car, there was no evidence as to how strong the odor was. A very small amount of marijuana may create an “obvious” odor, depending on the circumstances. There also was no evidence as to whether the odor was of fresh marijuana (as the trooper’s suspicion of delivery might suggest) or burnt marijuana (as his consideration whether defendant was impaired or intoxicated might suggest). Nor was there evidence about the locus of the odor, such as it coming from defendant, his passenger, the luggage in the back seat, or the trunk.

Furthermore, identifying an odor gives no one -- not even a well-trained trooper -- any idea how much marijuana is being smelled.

Finally, there was no evidence that the trooper had training or experience that led him to recognize what he smelled as fresh marijuana in a larger quantity.

This may be bad news for the state's drug task forces, but maybe they should concentrate on illegal drugs that are far more dangerous and corrosive to people's health. Weed may make for easy busts, but when it's legal, it takes a whole lot more to make its odor suspicious. Finding in favor of the state would subject a wide swath of law-abiding citizens to extended traffic stops and warrantless searches.

We are unprepared to say that, as to any person driving a rental car on a public highway in Oregon that is also used by drug traffickers, any odor of marijuana gives rise to reasonable suspicion of unlawful delivery of marijuana.

It's a long stretch to move from "smells like marijuana" to "this is drug trafficking." The trooper took that leap of faith and lucked out. But only momentarily. The evidence is suppressed and the state no longer has the evidence it needs to convict this driver of drug trafficking.

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Filed Under: 4th amendment, oregon, reasonable supicion


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  • identicon
    Anonymous Coward, 26 Jan 2021 @ 4:20am

    So, it's not reasonable suspicion if the odor of marijuana is, say, coming off the nearby field?

    reply to this | link to this | view in chronology ]

  • icon
    Upstream (profile), 26 Jan 2021 @ 4:24am

    Still a long way to go

    We still have much to do to end the disastrous "war on drugs." The laws "legalizing" marijuana in some states, but always with absurd regulations, restrictions, and limitations, are but one small step in the right direction. Court decisions like this one are another. The journey is very long, and the various governments and government agencies are doing everything they can to make it as long and difficult as possible.

    The evidence is suppressed and the state no longer has the evidence it needs to convict this driver of drug trafficking.

    Which shouldn't be illegal to begin with.

    reply to this | link to this | view in chronology ]

  • icon
    PeterScott (profile), 26 Jan 2021 @ 4:34am

    It might be reasonable for impairment behind the wheel.

    Alcohol is legal, but if you are stopped, and the cop is met with the odor of alcohol, that seems like it would be reasonable suspicion for alcohol impairment.

    Wouldn't it be the same for marijuana?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Jan 2021 @ 4:55am

      Re: It might be reasonable for impairment behind the wheel.

      Indeed, but it doesn't look as though he was charged with that.

      What was the rationale for the stop in the first place?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Jan 2021 @ 4:58am

        Re: Re: It might be reasonable for impairment behind the wheel.

        "What was the rationale for the stop in the first place?"

        Rental Vehicle == git 'em

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Jan 2021 @ 3:37am

        Re: Re: It might be reasonable for impairment behind the wheel.

        The court's decision just said "a traffic violation".

        reply to this | link to this | view in chronology ]

    • identicon
      Pooneil, 26 Jan 2021 @ 5:03am

      Re: It might be reasonable for impairment behind the wheel.

      No it is not. Marijuana is not impairing in a similar way to alcohol. It doesn't generally cause drivers to become reckless. It presence in the blood is not an indication of impairment. And as the article says, it is often just a police pretext for an extended stop and an easy arrest of people doing no harm.

      The cop apparently used the extended arrest to badger the guy into admitting he was transporting. So the other part of this is never talk to the police. Ever person should learn how to politely say you won't answer questions. The cops are not looking out for your interests.

      reply to this | link to this | view in chronology ]

      • icon
        Upstream (profile), 26 Jan 2021 @ 6:39am

        Re: Re: It might be reasonable for impairment behind the wheel.

        never talk to the police

        Correct. From https://www.criminalattorneystpetersburg.com/news/a-new-way-to-take-the-fifth/:

        “On the advice of my lawyer, I respectfully decline to answer on the basis of the Fifth Amendment, which—according to the United States Supreme Court—protects everyone, even innocent people, from the need to answer questions if the truth might be used to help create the misleading impression that they were somehow involved in a crime that they did not commit.”

        This is a little more difficult of a response to memorize, but it is largely more effective than the traditional responses many have gleaned from their favorite law and order TV series.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 27 Jan 2021 @ 3:41am

          Re: Re: Re: It might be reasonable for impairment behind the whe

          Just so long as there's nothing in that overly long statement itself that they can use against you. If you say "on the advice of my lawyer" but you don't actually have a lawyer, can they somehow twist that?

          reply to this | link to this | view in chronology ]

      • icon
        John85851 (profile), 26 Jan 2021 @ 8:54am

        Re: Re: It might be reasonable for impairment behind the wheel.

        "Ever person should learn how to politely say you won't answer questions."

        And in theory, that's an excellent idea.
        However, the reality is that this was a cop who was already going down the path of charging the guy with something. The choice was to either politely say no or have the cop arrest him, take him to the station, hold him, impound his rental car and weed, then hold him for a few hours for "not cooperating". Either way, it's still a major hassle to deal with. At least this way, the court threw the case out.
        So I'm not sure what the right choice would be, in this situation.

        reply to this | link to this | view in chronology ]

      • identicon
        Rekrul, 26 Jan 2021 @ 11:41am

        Re: Re: It might be reasonable for impairment behind the wheel.

        Ever person should learn how to politely say you won't answer questions.

        Then the cop calls for a drug dog, which "alerts" on the car, guaranteed, and he searches it and finds the weed anyway.

        reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 27 Jan 2021 @ 3:22am

        Re: Re: It might be reasonable for impairment behind the wheel.

        "Marijuana is not impairing in a similar way to alcohol. It doesn't generally cause drivers to become reckless..."

        Actually, it can be. Smoking a few joints and operating heavy machinery is not advised because it does create an altered state of mind.

        "...It presence in the blood is not an indication of impairment."

        As far as I recall there's no good test here which indicates whether you are still under the influence or just measuring residue, the substances tested for mainly being lipophilic and remaining in the body for weeks. With alcohol the blood alcohol level is directly indicative of how drunk you are. Testing for a joint only means you've smoked one at some point within the last few weeks.

        reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 26 Jan 2021 @ 5:05am

      A smell shouldn’t be enough, on its own, to require an arrest. Reasonable explanations exist for people smelling a certain way without having gotten drunk or high. But visibly impaired driving, the plain-sight presence of open alcohol containers or marijuana joints, and a failed sobriety test would all be good reasons for an arrest.

      reply to this | link to this | view in chronology ]

    • identicon
      Peter, 26 Jan 2021 @ 9:39am

      Re: It might be reasonable for impairment behind the wheel.

      It might well do and the officer would them be within his rights to try determine if the driver was impaired. Here is the thing. From the lawsuit "Defendant did not appear to be impaired or intoxicated".

      What the officer did was the equivalent of smelling alcohol and assume that meant the driver was selling alcohol without a licence.

      reply to this | link to this | view in chronology ]

    • identicon
      dadtaxi, 26 Jan 2021 @ 10:18am

      Re: It might be reasonable for impairment behind the wheel.

      It might be if alcohol was carried in paper bags - or of course marijuana in bottles & cans

      Otherwise - not so much. No.

      reply to this | link to this | view in chronology ]

    • identicon
      Rekrul, 26 Jan 2021 @ 11:45am

      Re: It might be reasonable for impairment behind the wheel.

      Alcohol is legal, but if you are stopped, and the cop is met with the odor of alcohol, that seems like it would be reasonable suspicion for alcohol impairment.

      Not necessarily. Is it just a general odor of alcohol, or is it on the driver's breath? They could have had a passenger who was drinking and got out before the stop. Maybe the driver was drinking a beer earlier while cleaning the car at home and spilled some on the seat. Maybe they were at a bar or party, not drinking, but someone else spilled their drink on them.

      Whether or not any of those are likely is beside the point. The point is that there can be a variety of reasons to smell alcohol other than the driver being drunk.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 27 Jan 2021 @ 3:30am

        Re: Re: It might be reasonable for impairment behind the wheel.

        "The point is that there can be a variety of reasons to smell alcohol other than the driver being drunk."

        Police: "I smell alcohol, sir!"
        Driver: "...there's a pandemic going on and I carry a bottle of often-used hand sanitizer...?"
        Police: "Pop the trunk and strip, perp, I'm taking you in!"

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Jan 2021 @ 2:45pm

      Re: It might be reasonable for impairment behind the wheel.

      No, you don't smell like alcohol simply by having been around containers of liquor, or by having liquor stored in your car. Smelling like pot doesn't indicate that you've been smoking pot, but smelling like alcohol does.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 27 Jan 2021 @ 3:33am

        Re: Re: It might be reasonable for impairment behind the wheel.

        "but smelling like alcohol does."

        Except if there's a pandemic going on and everyone having to go outside is recommended to carry and use hand sanitizer every time they,say, get into their vehicle after having driven a shopping cart around or touched other surfaces a lot of people have been in contact with.

        If someone specifically smells of bourbon or whiskey, etc...that's another story.

        reply to this | link to this | view in chronology ]

  • identicon
    avideogameplayer, 26 Jan 2021 @ 7:25am

    The problem is that the police are no longer getting any money from 'confiscated' goods to pad their budgets any more.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Jan 2021 @ 8:17am

    So many questions...

    Why is it illegal to transport a product legal in one state to another state where the product is legal? Is the problem purely that the product will cross states where it is not legal? And if so, shouldn't those states where it is illegal have cause to make such a charge and not those where it is legal?

    reply to this | link to this | view in chronology ]

    • identicon
      Rekrul, 26 Jan 2021 @ 11:49am

      Re: So many questions...

      Why is it illegal to transport a product legal in one state to another state where the product is legal?

      I'm sure someone will correct me if I'm wrong, but I believe that even in states where it's legal, it's tightly controlled. Stores need a special license to sell it and I think it's illegal to grow more than a small amount for personal use. Of course this is all about money; The state collects fees for the license to sell it and probably high taxes on the sale of it. If people are growing their own in bulk and selling it, the state doesn't get a cut.

      reply to this | link to this | view in chronology ]

      • identicon
        Burning woodchipper, 26 Jan 2021 @ 11:56am

        Re: Re: So many questions...

        Follow the money. States tax items at different rates, and selling regulated items in ways or through channels that the state disapproves of is a straight path to harassment.

        See also:
        selling single cigarettes without a license
        crossing state lines with "excessive" amounts of packaged tobacco
        "duty-free" shops at international borders

        So if the state taxes the grower, the harvester, the transporter, and the seller, buying goods grown in a different state, carrying them across state lines, and selling them (even to a licensed retailer) takes money from one state's pockets and puts in another's.

        reply to this | link to this | view in chronology ]

        • identicon
          Rekrul, 4 Feb 2021 @ 10:57am

          Re: Re: Re: So many questions...

          Follow the money. States tax items at different rates, and selling regulated items in ways or through channels that the state disapproves of is a straight path to harassment.

          See also:
          selling single cigarettes without a license
          crossing state lines with "excessive" amounts of packaged tobacco

          Many years ago, there was a mail order business in some other country that sold cartons of cigarettes meant for the European market at prices MUCH lower than you could get them for in the U.S. I forget if I discovered this or if my father was told about it. Regardless, he placed an order for about 10 cartons, which he then turned around and sold to people he knew for twice the price. He did this a few times. The last time, he never got them and after about a month, he got a letter from the ATF (I think) stating that they had impounded the shipment at the airport and that he had x number of days to contest it. He didn't, and that was the end of that.

          As I recall, the stated excuse for preventing people from ordering from such places was that since the cigarettes were meant for Europe, they didn't conform to the U.S. ingredient laws. Which is BS, since other countries have stricter standards for what cigarettes can contain. As cigarettes go, they were actually slightly less harmful than the ones made for the U.S.

          To any LEOs reading this: My father has been deceased since 2004.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Jan 2021 @ 12:24pm

        Re: Re: So many questions...

        it's illegal to grow more than a small amount for personal use

        Ok, then where do the stores get product to sell?

        reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 27 Jan 2021 @ 3:50am

        Re: Re: So many questions...

        "I'm sure someone will correct me if I'm wrong, but I believe that even in states where it's legal, it's tightly controlled."

        That, and the somewhat absurd dissonance that although a number of states have legalized it, pot is still illegal on the federal level. To the same extent heroin and crack cocaine is.

        In short, one small scribble of missed bureaucracy will turn your state-state drive into 20 to life.

        reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 26 Jan 2021 @ 11:52am

    [State where marijuana is still illegal]

    Cop: I smell marijuana.

    Driver: Oh, you're probably smelling my marijuana scented air freshner and my marijuana scented spray. I don't smoke it, I just like the smell of it. I have tobacco scented ones too for the same reason. Would you like to see?

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 26 Jan 2021 @ 12:01pm

    https://legislature.idaho.gov/statutesrules/idstat/title37/t37ch27/sect37-2701/

    https://www.kpvi.com /news/regional_news/idahoans-speak-out-for-against-anti-drug-constitutional-amendment/article_4c5a59 03-4a92-551c-9bca-728e434d4c1c.html

    "The proposal would only allow Idaho to have psychoactive drugs that are legal and FDA-approved, prescribed by doctors, and dispensed by pharmacies. Grow said he wants to “lock in” current Idaho drug laws, but that his measure still would allow for Idaho lawmakers to legalize industrial hemp or CBD oil in the future if they choose to do so."

    its really strange how republicans are all different. from those that want Little fed gov. control to FULL state controls.

    reply to this | link to this | view in chronology ]

  • icon
    Scary Devil Monastery (profile), 27 Jan 2021 @ 5:59am

    "...from those that want Little fed gov. control to FULL state controls."

    Not that strange. The republicans today are those who were the democratic party until the 1950's when FDR's "New Deal" drove all the southern old-moneyed Klansmen from that party. They've been in favor of state rights über alles since well before the civil war.

    The end goal being to accommodate the four sacred topics; Guns (full-auto rifles in every home, and the right to shoot liberals on sight), Religion (down with Roe vs Wade and mandatory morning prayers in school), Racism (because terrorist laws should include "Being Brown and/or Jewish") and LGBTQ (because "abomination unto God" and all that).

    Easiest way to accommodate those topics is to bypass the supreme court and the federal government and let the "good people" in the states decide without some washington liberal puke getting a word in sideways.

    If the GOP had their way Tennessee, Georgia, Kentucky, Florida, Mississippi, Arizona and all the other traditional red states would be free to declare being a "Liberal", "Gay", "Brown Person" or "Pagan" unlawful.

    Getting rid of the federal government and give full power to the state is something they've been after all along.

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 27 Jan 2021 @ 12:41pm

      Re:

      might as well go back to Each state having its own currency.
      That was a GREAT time.
      And as with Opinions, every state having its own regs/rules/laws.
      Just tell the rest of the world we wiped out the last 80 years?? Of pollution control, equal rights, Anti racism.
      back to Barefoot/naked/and the kitchen. Still blaming slaves that there isnt any jobs. Pointing at the Jewish, because they TRY to teach themselves better for banking and music.

      reply to this | link to this | view in chronology ]


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