Police in some jurisdictions are apparently ignoring their own state laws and using federal anti-marijuana statutes as an excuse to search cars and make arrests.
Pot is fully legal in two states, Colorado and Washington. Medical marijuana is legal in those states and another 18, plus Washington, D.C. Seven of those states and another six have decriminalized recreational marijuana, essentially removing criminal penalties and replacing them with civil fines.
Police in some of these places have been instructed that state law prevents them from searching vehicles simply because they smell pot. But police aren’t always obeying those instructions, instead claiming federal law gives them the power to search despite contrary state law.
In Massachusetts, for example, the Supreme Judicial Court, that state’s highest court, ruled two years ago that the odor of burning marijuana isn’t sufficient cause to order a motorist out of her vehicle. That’s because the state’s voters decriminalized possession of less than an ounce of pot in 2008, making it a civil violation rather than a crime.
“To order a passenger in a stopped vehicle to exit based merely on suspicion of an offense, that offense must be criminal,” the court ruled.
Nonetheless, when Anthony Craan was stopped by police in 2010, they searched his car solely because of “the strong odor of fresh, unburned marijuana coming from the passenger compartment.” They found MDMA, marijuana and four loose rounds of ammunition.
Now prosecutors are arguing the search was valid, despite state law, because federal law bans marijuana – and under federal law, a search would be proper. The essential position of police and prosecutors is that they’re free to ignore state pot law and may instead become agents of the federal government, enforcing federal law as suits their moral leanings.
Marijuana advocates are having none of it. In an amicus brief filed with the court, NORML urged the justices to reject the radical law enforcement position. The group wrote in its brief:
“The appellant asks this Court to reverse its holding in Cruz and its progeny by empowering state law enforcement to ignore the state decriminalization law and enforce instead federal prohibition law. The appellant would enable federal law to justify police searches otherwise illegal under state law. . . .
“Local police cannot evade state law constraints in state court prosecutions by wishing they were federal deputies and pretending their arrestees can be brought to federal courthouses. Allowing state law enforcement to disregard state law, by preferring federal policies rejected by popular initiative and this Court, eviscerates the sovereignty of the people and federalism’s protection of state sovereignty.”
Prosecutors in Craan’s case are also arguing that police had probable cause to charge Craan because he admitted during the traffic stop that he had recently smoked marijuana. That gave police grounds to arrest him on charges of driving while intoxicated, prosecutors argue, justifying a search of the car – though they’ve offered no proof of impaired driving.
They have also stretched the law behind the point of recognition to argue that the presence of a little pot suggests the presence of a lot. By that line of argument, the odor of any pot would suggest the presence of more than an ounce of pot, which would be a crime allowing for a search. This would completely override the court’s earlier ruling and would allow searches on the slightest of pretexts.