State Laws Legalizing and Decriminalizing Possession of Marijuana and Fourth Amendment Searches
Joseph Samuels*
Across the United States, states continue to either decriminalize or legalize possession of marijuana. Marijuana Overview, Nat’l Conf. St. Legislatures (Aug. 30, 2017), http://www.ncsl.org/research/civil-and-criminal-justice/marijuana-overview.aspx. As more states change their position on the legality of marijuana, courts across the country must consider whether law enforcement officers have reasonable suspicion to conduct a search when either the officer or a police dog detects the odor of marijuana. See, e.g., People v. McKnight, No. 16CA0050, 2017 WL 2981808, at *1 (Colo. App. July 13, 2017); Norman v. State, 156 A.3d 940, 943 (Md. 2017); Robinson v. State, 152 A.3d 661, 665 (Md. 2017); Commonwealth v. Overmyer, 11 N.E.3d 1054, 1055 (Mass. 2014).
States that have chosen to legalize or decriminalize marijuana face the question of whether the use of drug detection dogs infringes upon an individual’s expectation of privacy because drug detection dogs are unable to distinguish between marijuana and other illegal contraband. See McKnight, 2017 WL 2981808, at *2. Similarly, states that have legalized or decriminalized marijuana must decide whether the mere smell of marijuana provides a reasonable suspicion of other criminal activity. See, e.g., McKnight, 2017 WL 2981808, at *1; Norman, 156 A.3d at 946.
- Controlling Law
The Fourth Amendment to the United States Constitution protects the people from unreasonable searches and seizures. U.S. Const. amend. IV. Interpreting whether a “search” falls under the Fourth Amendment, the Supreme Court has held that “[a] police officer has probable cause to conduct a search when ‘the facts available to [him] would “warrant a [person] of reasonable caution in the belief”’ that contraband or evidence of a crime is present.” Florida v. Harris, 568 U.S. 237, 243 (2013) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)) (alterations in original).
In Colorado, the “reasonable suspicion” standard applies if a police officer desires to use a dog sniff on a vehicle. McKnight, 2017 WL 2981808, at *4. The standard requires police to have “‘specific and articulable facts, greater than a mere hunch, to support’ their belief that the person to be stopped is or may . . . [be] involved in criminal activity.” Id. (quoting People v. Huynh, 98 P.3d 907, 912 (Colo. App. 2004)).
While Colorado’s “reasonable suspicion” standard is similar to that of the Supreme Court, the Supreme Court has repeatedly held that a “well-trained narcotics-detection dog [sniff] . . . ‘discloses only the presence or absence of narcotics, a contraband item.’” Illinois v. Caballes, 543 U.S. 405, 409 (2005) (quoting United States v. Place, 462 U.S. 696, 707 (1983)). Additionally, the Supreme Court held in Gonzales v. Raich that the Controlled Substances Act, which included criminalization of marijuana, preempted state laws legalizing marijuana for medicinal purposes. See 545 U.S. 1, 12–14 (2005).
- People v. McKnight
On July 17, 2017, the Colorado Court of Appeals reversed Kevin McKnight’s conviction for possession of a controlled substance and possession of drug paraphernalia. See McKnight, 2017 WL 2981808, at *1. At trial, McKnight moved to suppress evidence the police recovered from his truck, claiming that the police “violated his constitutional rights by conducting a dog sniff of his truck without reasonable suspicion and by otherwise searching his truck without probable cause.” Id. (footnote omitted). At the suppression hearing, the arresting officer informed the court of the circumstances leading up to McKnight’s arrest. Id. at *1–2. The officer testified that he observed McKnight’s truck parked in an alley for fifteen minutes in front of a house which had turned up illegal drugs in a search seven weeks earlier. Id. at *1. The officer also told the trial court that he recognized McKnight’s passenger because she had used methamphetamine “at some point in the past.” Id. at *2. The trial court denied McKnight’s motion to suppress the evidence taken during the traffic stop.
In 2012, Colorado amended its State Constitution to allow people ages twenty-one and older to possess up to one ounce of marijuana for recreational purposes. Id. at *1; Colo. Const. art. XVIII, § 16(3)(a). Upon legalizing marijuana for personal use, possession of marijuana in Colorado for people ages twenty-one and older became neither a criminal nor civil violation. McKnight, 2017 WL 2981808, at *1.
As a case of first impression in Colorado, the Court of Appeals grappled with how the legalization of marijuana would affect warrantless searches initiated by dog sniffs. See id. at *3–4. While the court acknowledged that “possession of marijuana by anyone in any amount remains a crime under federal law,” the court declined to apply federal law. Id. at *3. Instead, the Colorado Court of Appeals decided to address what the effect of Amendment 64, the legalization of marijuana, had on searches based on dog sniffs in ColoradoThe court reasoned that “a dog sniff of a vehicle could infringe upon a legitimate expectation of privacy solely under state law, [and] that dog[’s] sniff[s] should now be considered a ‘search’ for purposes of . . . [Colorado’s State Constitution].” Id. Additionally, the court concluded that prior to the traffic stop, “the police lacked the requisite reasonable suspicion to subject McKnight’s truck to a dog sniff.” Id. at *4.
III. Other States’ Fourth Amendment Issues Following Legalization and Decriminalization of Marijuana
The Supreme Judicial Court of Massachusetts has similarly addressed the issue of whether the odor of marijuana gives police probable cause to order individuals out of a vehicle during a traffic stop. See Commonwealth v. Cruz, 945 N.E.2d 899, 902 (Mass. 2011). In Cruz, Massachusetts addressed the same issue that Colorado addressed in McKnight: what effect does decriminalization have on searches and seizures in the jurisdiction? See id.; see also McKnight, 2017 WL 2981808, at *3.
In Cruz, the Supreme Judicial Court of Massachusetts stated that the smell of marijuana remains probable cause for police to conduct a search of a vehicle, because even though Massachusetts made possession a civil offense, possession remained illegal and a fine could have been issued based solely on possession. See Cruz, 945 N.E.2d at 906. However, the court stated that because the defendants in Cruz were ordered out of a vehicle based on the officer’s statement that he detected the “‘faint odor’ of burnt marijuana,” the officers did not have enough justification for “reasonable suspicion” and had no reason to order the defendants out of the vehicle. Id. at 908.
In Maryland, the Court of Appeals decided two cases in which the odor of marijuana from a vehicle has led to police initiating a search. See Norman, 156 A.3d at 943; Robinson, 152 A.3d at 665.
First, in Robinson, the Maryland Court of Appeals decided whether the decriminalization of marijuana no longer gives police probable cause to search a vehicle when a police officer detects the smell of marijuana. Robinson, 152 A.3d at 665. The court unanimously held that, although Maryland decriminalized possession of less than ten grams of marijuana, possession of any amount of marijuana remained contraband. Id. As a result, Maryland police still have probable cause to search a vehicle when an officer detects the smell of marijuana. Id.
In Norman, although reaffirming its holding in Robinson, the court further addressed whether police had “reasonable articulable suspicion that the vehicle’s occupants are armed and dangerous, and thus may frisk . . . the vehicle’s occupants for weapons” based on the smell of marijuana. Norman, 156 A.3d at 943. The Court held that the mere smell of marijuana from a vehicle does not give police a reasonable suspicion that occupants of a vehicle are armed, and therefore, they cannot be frisked. Id. at 944.
- Conclusion
Several states, including the District of Columbia have legalized possession of marijuana as well as its use for recreational and medicinal purposes. Marijuana Overview, supra. There is presently a divide in the law in jurisdictions where possession of marijuana has been decriminalized and those where it is legal. Compare McKnight, 2017 WL 2981808, at *2–3 (holding that dog sniffs can be considered a “search” as they can infringe upon a reasonable expectation of privacy only under Colorado state law), with Norman, 156 A.3d at 944 (holding that police do not have “reasonable articulable suspicion” to frisk occupants of a vehicle based on the odor of marijuana alone), and Cruz, 945 N.E.2d at 902 (holding that officers were not justified to order the defendant out of his car during a traffic stop due to the “mere odor of burnt marijuana”). Soon, courts will have to answer difficult questions, including how the legal possession of marijuana will affect an individual’s right to privacy under the Fourth Amendment.
*Joseph Samuels is a second-year law student at the University of Baltimore School of Law, where he currently serves as a staff editor for the Law Review, and as treasurer for Phi Alpha Delta Fraternity. Joseph is a member of the Royal Graham Shannonhouse III Honor Society and has served as an intern for the Honorable Shirley M. Watts on the Maryland Court of Appeals.
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