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.

Filed Under: 4th amendment, oregon, reasonable supicion