In the summer of 2017, Orlando Dickson had just left work at the Partnership for the Public Good, a think tank in Buffalo, and was driving to pick up his daughter when he stopped at a red light and noticed a police car behind him. While he hadn't been speeding or driving erratically, Dickson, who is Black and was then 28, said he sensed he was going to be pulled over.

“I’ve been pulled over so many times in my life, after not really doing anything, that every time a police officer gets behind me, I assume I’m going to get pulled over,” he said.

And he was.

The officer asked Dickson for his license and registration and went back to his vehicle. When he returned, he asked, “Do you mind if I search your car?” When Dickson would not authorize the search, he recalled, the officer said he could smell marijuana in the vehicle.

Dickson was instructed to exit his car, and the officer conducted a search but found no contraband, Dickson said, and certainly not marijuana because he doesn’t smoke it.

For decades, police officers have used motor vehicle stops and searches, which relied on officers saying they could smell marijuana, as part of their drug interdiction efforts. Because marijuana was illegal, the smell of it gave officers the probable cause they needed to justify the search. But now that marijuana is legal in 16 states and Washington, D.C., and medical marijuana is legal in 36 states plus D.C., the odor of marijuana no longer provides ironclad probable cause, because smoking it in those states is not necessarily criminal.

Law enforcement fears losing this tool will mean crimes may go undetected.

New York appears willing to take that risk. The state’s marijuana legalization law, passed in March, went so far as to state that the smell of marijuana would no longer serve as probable cause for a search.

“I don’t think any other state was as clear-cut in removing marijuana very clearly from the universe of things that law enforcement can use, and certainly the odor of marijuana, as a reason to search a vehicle,” said Melissa Moore, New York state director for the Drug Policy Alliance.

In other states where marijuana is legal, the rules regarding searches are being hammered out in the courts. In Maryland, for instance, where 10 grams or less of marijuana has been decriminalized, an appellate court concluded in April that the odor of marijuana by itself does not provide reasonable suspicion of criminal activity, and thus the search of a pedestrian on this basis was unreasonable under the Fourth Amendment.

 

The Colorado Supreme Court threw out a drug conviction in 2019 because police had no justification for having a dog sniff the defendant’s truck, given that they had no reasonable suspicion a crime was being committed now that marijuana is legal there.

Yet last year, the high court in Michigan said evidence of illegal guns and drugs should not be suppressed, saying the odor of marijuana was sufficient to justify a warrantless search, and that the defendant initially denying having any made the officer believe he had more than the 2.5 ounces allowed by law.

And in March in Florida, where only medical marijuana has been decriminalized, an appellate court ruled the smell of marijuana was enough to justify a search, particularly if the vehicle was being driven recklessly or erratically.

 

“It’s an extraordinarily gray area,” said Mark Reene, prosecuting attorney for Tuscola County, Mich. “These are going to be decided very much on a case-by-case basis, and they’re going to be very fact-dependent. And what’s ultimately going to happen is this matter will end up in front of the United States Supreme Court.”

The lack of clarity has made officers hesitant to conduct searches, and that’s certainly resulted in contraband being seized at a lower rate, Reene said.

Complicating matters is that police still have caretaking responsibilities, and if they suspect someone is driving under the influence, they can stop a vehicle and ask the driver to get out to conduct a sobriety test. But at that point, a search of the car is still off limits.

 

“If they determine that the person is under the influence, and they are going to arrest them for being under the influence for DWI, then they can search the vehicle,” said William Neafsey, who heads the Narcotics Task Force at the Essex County prosecutor’s office in New Jersey.

Civil rights advocates say anything that hinders motor vehicle searches is cause for celebration, as they were used disproportionately on Black and Brown motorists. Black residents, for instance, make up about 50 percent of Newark’s population but in 2019 were involved in almost 80 percent of the police department’s searches, according to the most recent data on its website.

“Police believe that if they stop more Black people, they’re going to pick up more drugs, because that’s what they’ve been taught,” said Meghan Matt, who works for a criminal defense and civil rights litigation attorney in Baton Rouge. “But it is statistically evident that Black and White people use marijuana at the same rate.”

Matt, who wrote a paper for the Southern University Law Review on how decriminalization of marijuana has affected warrantless searches, said every criminal defense attorney with whom she has spoken has numerous cases in which the police report states that the officer searched the car based on the odor of marijuana.

John Wesley Hall, a criminal defense attorney in Little Rock and past president of the National Association of Criminal Defense Lawyers, said he’s had clients stopped by police for following too closely behind a truck — you’re supposed to be 7½ car lengths and his client was two — or they failed to signal, even though there was no one else on the road, and then once the car is stopped, the officer will “do a sniff of the car.”

“They smell marijuana in probably half of the case files I see,” Hall said. “Ohio is notorious for having a drug dog either in the car with the cop or near at hand, so close that the drug dog gets there before the ticket is written.”

The odor of marijuana is used so frequently in searches that April Newbauer, a judge on the Bronx County Supreme Court, chided police in a 2019 decision. In knocking down evidence of a revolver and ammunition that she said was obtained through an illegal search, she said testimony about odors from cars has become ubiquitous. She concluded that the officer’s testimony that three bags of marijuana were lined up neatly in a row — at the base of the gear shaft, in plain sight, even though the defendants saw the officer walking toward the car and had a firearm in their trunk — was so incredulous as to cast doubt on his entire narrative.

“This case illustrates why the time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop,” the judge wrote.

Law enforcement officials say motor vehicle stops are one of the tools police use to ferret out criminal activity. While searching someone’s home requires a search warrant from a judge — and a strong justification for obtaining one — searching someone’s vehicle does not, and those searches have resulted in seizures of drugs and weapons that might not otherwise have been found.

“It’s going to, without a doubt, lead to less searches of vehicles, which would then lead to less guns being recovered and significant drugs being recovered,” said Mary Tanner-Richter, vehicular crimes bureau chief in the Albany County district attorney’s office in New York. “I mean, I think it’s hard to argue against that being the reality we’re going to face.”

Tanner-Richter has been in the traffic safety division for 16 years and says that a large portion of the guns that have been seized by her office came from traffic stops. There are all kinds of crimes committed that result in the perpetrator winding up in a motor vehicle. Traffic stops were such a helpful investigative tool that her office encouraged police to make such stops.

“That’s how they found Ted Bundy. That’s how the Oklahoma City bomber got caught. And quite often, that’s how they’re getting guns and drugs off the street,” she said. “They are now losing a huge tool in their investigation of drugs and guns.”

Police are simply going to have to change the way they investigate crime, says Neafsey of the Essex County Prosecutor’s Office.

But there’s a silver lining, he says. It frees up detectives to pursue the cocaine and heroin problems plaguing cities. Since marijuana was legalized in New Jersey in February, his unit has seized multiple pounds of cocaine and 1,000 bricks of heroin that were part of a high-level drug operation.

“I thought, ‘This is what we should be doing. This is the stuff that matters,’ ” Neafsey said. “If you’re not worried about investigating marijuana, it frees up manpower to go after the serious stuff.”

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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