Law enforcement agencies pulling shakedown maneuvers in medical marijuana states are now being forced back to the drawing board to develop an alternative to their once tried-and-true method for establishing probable cause: an officer claiming to smell weed. Several judges, including a few presiding over an Arizona court, have recently ruled that the odor of marijuana no longer gives police the right to initiate a raid.
The Arizona Court of Appeals recently delivered a verdict suggesting that with the passing of the state’s medical marijuana law, the odor of raw or burnt cannabis could no longer be used to determine probable cause. In the decision, Judge Peter Eckerstrom wrote that medical marijuana “is lawful under Arizona law,” and therefore “its scent alone does not disclose whether a crime has occurred.”
Essentially, this means that Arizona police can no longer petition a judge for a search warrant simply because an officer claims to smell weed. Instead, the court declared that law enforcement would need to implement an “odor-plus” policy when investigating potential criminal activity associated with marijuana. Otherwise, Eckestrom wrote, the state is witting violating the constitutional rights of its people.
“Were we to adopt the state’s suggestion that scent alone furnishes probable cause of a crime, medical marijuana patients would become second-class citizens, losing their rights to privacy and security, including privacy within their own homes.”
The voices of the arbitrary gods have handed down similar decisions over the past year. In Massachusetts, the Supreme Judicial Court ruled in 2014 that the odor of cannabis, regardless of its chemistry, could not be used as probable cause to search a vehicle. The justices argued that since voters decriminalized small amounts of marijuana in 2008, the odor of weed was no longer substantial enough proof that an individual was breaking the law. Specifically, the judges said that it was impossible for an officer to determine that someone was in possession of more weed than what was legally allotted based solely on the strength of his or her olfaction.
There is increasing contention that regardless of weed’s legal status, using its odor as a measure to determine probable cause should be ruled unconstitutional across the board. A study published several years ago in the journal Law and Human Behavior suggests that even those cops with the most powerful sniffers are unable to determine the presence of marijuana based on odor alone. This, according to the study, is because the scent of cannabis is not unique. Marijuana consists of over 200 different terpinoids that are also found in animals, flowers, and garbage, noted the study authors, making it erroneous for an officer to establish probable cause based only on scent.
However, as more states continue to legalize marijuana, it seems this putrid practice may be on the path to extinction. In the latest ruling, Judge Eckerstrom said that claiming to smell marijuana is “outdated” as the lone criteria in building a case against illegal marijuana possession, as well as impossible to “form a well-founded belief that a criminal offense was committed.”
Unfortunately, this ruling will not act as an absolute shield. It will simply force police to conjure up a secondary excuse before kicking down the door.