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When small amounts of marijuana are a civil offense, the smell alone does not permit a search

Apr 21, 2011 When small amounts of marijuana are a civil offense, the smell alone does not permit a search

Image from public domain.

The problem about judges with limited or no experience smoking marijuana is that too many of them rely on a false pillar no sturdier than sand about the smell of marijuana allowing a free-for-all warrantless search (and improvidently-issued home search warrants on the mere claim of marijuana odor there). Too many judges refuse much if any defense counsel voir dire cross-examination of the police about the basis for their knowing it was marijuana (and about the extent of the quality of the cops’ smell abilities in general, whether they had a cold that day, and whether other recent smells interfered with their sense of smell), the strength of and type of smell of marijuana, and the location of the odor.

As I have complained before, Too many judges ignore the critical difference between the often pungent smell of burnt marijuana and often faint smell of unburnt marijuana. Praised be Indiana’s Court of Appeals for refusing to go down that improvident road. Indiana v. Holley, 899 N.E.2d 31 (Ind. App. 2008).  

Enough already with the unsupportable line of judicial decisions allowing free-for-all searches based on the mere police claim of a marijuana odor, without more than that, and sometimes with dismissive judicial refusals to allow much if any defense counsel voir dire cross-examination of police on such matters.

I send a huge proverbial bear hug to Massachusetts Supreme Court Justices Ireland, Spina, Cordy, Botsford, and Gants, who on April 19 upheld the suppression of cocaine found on Benjamn Cruz. Massachusetts v. Cruz, SJC-10738 (Mass., April 19, 2011). (Thanks to a fellow attorney for posting an article on this case.) Mr. Cruz was a passenger in a parked car in which police noticed a "faint" marijuana odor, and a driver apparently smoking a marijuana-filled-blunt. The police eventually ordered the car’s occupants out, asked Cruz if he had any drugs, and he said he had some crack for his own use.

Praised be the Massachusetts Supreme Judicial Court for determining that the new Massachusetts law making a civil offense out of possessing under an ounce of marijuana removes the mere smell of marijuana from giving police probable cause to search.

Cruz is not only relevant to states where small amounts of marijuana is a civil offense, but also to states where medical marijuana is lawful. Cruz is also relevant to all states, in that it supports needing a sufficient nexus between marijuana odor and probable cause to believe that a criminal amount of marijuana will be found through a search. In Cruz, the police clearly could not figure out by smell whether over an ounce of marijuana was present (over an ounce is still a crime in Massachusetts), and in Cruz I do not believe marijuana was found at all. Similarly, the smell of burnt marijuana being as stinky as it is, the smell can linger on a jacket or other piece of clothing long after it is smoked elsewhere, and still not provide probable cause to believe marijuana will be found through a search.

The ongoing free-for-all searches that too many judges permit on a police officer’s mere claim of smelling marijuana makes it essential to give defendants the option of having jurors decide whether such probable cause to search existed. Better yet, legalize marijuana now, everywhere, and the benefits of Cruz then follow in our nation.

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