The ubiquitous "odor of marijuana"

New York's legalization bill attempts to take on the notorious justification for police harassment

Source: Snappy Goat

In the summer of 2018 I was an intern at the public defenders’ office in Los Angeles. I remember the first case that stuck out to me: the arrest stemmed from a car stop, which led to a car search because the officers detected the smell of marijuana.

There was a lot of fanfare around Prop 64, which made marijuana legal for recreational purposes at the beginning of that year in California, so I was confused. The attorney patiently explained to me that while you can use marijuana legally, you cannot drive under the influence of marijuana. Because of that, police could still pull people over and use the smell of marijuana as an excuse to search the car—something police claim with incredible regularity when they don’t otherwise have a justified reason for a car search.

The harm of marijuana in the court system is not just about prosecutions for possession and sale—which have historically and still do do a lot of harm to mostly black and brown people in this country—but ALSO the way that the police use marijuana’s combination of ubiquity and illegality to justify harassing and searching people, which then leads to countless other arrests that otherwise wouldn’t have happened. And for every time the police actually find more drugs or a weapon, there are countless other people whose lives, cars, and bodies are invaded by the police for because of nothing more than the smell of marijuana (be it real or made up later as a reason to justify the search).

Since the summer of 2018, California appellate courts have slowly moved to close this loophole. There are several cases that now say simply seeing marijuana in a car isn’t a justification for a search, and there is at least one that says the smell of marijuana (burnt or fresh) is not enough probable cause to allow the police to search a car. What I find notable about the latter case is that it seems to hinge on the fact that the officer in the case testified that she knew that the smell of marijuana can linger for up to a week on fabric. Obviously, once you admit that, you’ve sort of given up your argument that smelling marijuana is evidence of any sort of crime in progress, which gives up the justification for the search of the car without a warrant.

Because of that testimony, the appellate court was able to rule in this way in a very straightforward manner without having to get into the deeper implications of what is going on here. It reads very, very differently than when Bronx judge April Newbauer ruled in 2019 that NYPD officers’ claims that they smelled marijuana should be subjected to higher scrutiny because it’s pretty much common knowledge they lie about it all the time. Under the dry analysis, though, the California decision has the advantage of entirely shutting off the “smell of marijuana” as a reason to conduct a car search, rather than just asking other judges to please, for the love of god, stop pretending that they believe that every cop smells marijuana during every car stop they make.

In California, the fight isn’t over. The decisions I’ve seen have all been from the intermediate appellate courts, so the California Supreme Court could eventually decide to go the other way and say that the smell of marijuana is a justified reason for a car search. And even with these decisions, the courts don’t really have control of what happens on the ground. Just because it won’t hold up as a justification for a search in court anymore doesn’t mean that police cannot continue to use marijuana—phantom or real—as an excuse to search. Police departments care about arrests, not so much whether prosecutors can make their case. It will take a long time for norms to change.

The molasses-like movement of the law in California illustrates one of the fundamental tensions in our legal system. A lot of people look to courts to make things right when the legislature messes up. We can talk about the truth of that assumption another day, and for now just go with the fact that one of the things that courts do in our system is interpret how something like the legalization of recreational marijuana affects parts of the law that the legislature didn’t specifically address when they wrote and voted on a bill.

Even with courts doing what I would consider the right thing in California, and honestly moving quickly as these things go, how many people have been searched, arrested, and prosecuted based on the “smell of marijuana” since recreational marijuana became legal in 2018? Those cases I mentioned above were published in mid-to-late 2019. I could be wrong, but I don’t see anything around about the California Supreme Court taking up this issue yet. Those stops, searches, and arrests are probably still happening.

That is why it is so important for New York to get it right from the start. The new bill, which seems at the moment like it might actually become a law, directly addresses this issue, in section 222.05(3):

Except  as  provided  in  subdivision four of this section, in any criminal proceeding including proceedings pursuant to section 710.20  of the  criminal  procedure  law, no finding or determination of reasonable cause to believe a crime has been committed shall  be  based  solely  on evidence  of  the following facts and circumstances, either individually or in combination with each other:

(a) the odor of cannabis;
(b) the odor of burnt cannabis;
(c) the possession of or the suspicion of possession  of  cannabis  or concentrated cannabis in the amounts authorized in this article;
(d) the possession of multiple containers of cannabis without evidence of concentrated cannabis in the amounts authorized in this article;
(e)  the  presence  of  cash  or  currency in proximity to cannabis or concentrated cannabis; or
(f) the  planting,  cultivating,  harvesting,  drying,  processing  or possessing cultivated cannabis in accordance with section 222.15 of this article.

As referenced in the beginning of the excerpt, there is an exception in Section 222.05(4), which allows the smell of burnt cannabis to be used as a reason to conclude that someone is driving under the influence of marijuana (good luck proving that). However, the second sentence of the subsection tries to get at the heart of the issue:

During such investigations, the odor  of burnt  cannabis shall not provide probable cause to search any area of a vehicle  that  is  not  readily  accessible to the driver and reasonably likely to contain evidence relevant to the driver's condition.

That’s definitely one of those things people like me will be litigating in court forever as prosecutors try to push the definitions of “readily accessible” and “reasonably likely to contain evidence,” but this at least shows that the legislature is cognizant of how often the smell of marijuana is used to justify otherwise illegal searches, and they’re trying to do something about it.

That’s at least something to be hopeful about.

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