For decades police have followed their noses into people’s personal effects, using the smell of burning marijuana as “probable cause” for an arrest. Then they search the suspect—and sometimes their property. But now that roasting one in public is no longer technically a crime, how have police altered their rules of engagement? Can they still stop your car just because they say they smelled some ganja? What if they smell it wafting from your kitchen window? We asked.
“The smell is still probable cause for a traffic stop,” said Baltimore City Police spokesman Jeremy Silbert, before referring us to the Baltimore State’s Attorney’s Office for more detail. The office of State’s Attorney Marilyn Mosby did not return calls seeking comment. We reached out to David Rocah, senior staff attorney with the ACLU of Maryland.
“I think the answer to your narrow question (would a cop smelling a burning joint through the open window of a car have reasonable suspicion to make a stop) is clear. Yes,” he writes in an email. “[B]ecause even with decriminalization, possession of small amounts of pot is still a civil offense, and a civil offense is still a lawful basis for a stop (just as the vast majority of traffic offenses are civil, not criminal offenses, but are still basis for traffic stops). I think the more difficult question is when the smell of pot can justify a search, in addition to a stop. That is less clear, and there are conflicting decisions from courts in other parts of the country that have also decriminalized small amounts of pot.”
On the phone, Rocah explains that shifting state pot laws are sowing confusion. “In general, it’s hard to say anything accurate about the Fourth Amendment,” Rocah says. “With some exceptions—exigent circumstances is the main one—police can’t enter a home without a warrant. So pot smell doesn’t rate as exigent circumstances. They could knock on the door and ask to come in. There is no requirement that you let them in.
“Could they get a warrant because they smell pot . . . that is unclear. Or, I should say, I think the answer is clear but courts have reached different conclusions.”
Since police need to have “reasonable suspicion” that a crime is being or about to be committed in order to even approach someone, the question turns on how much marijuana one must possess in order for it to be a crime. In Massachusetts, Rocah says, judges have concluded that the mere scent of pot doesn’t rate, because that state has decriminalized a comparatively large amount—a whole ounce. The new Washington, D.C. law explicitly states that pot smell is no longer justification for a stop. But judges in other states have found the opposite, Rocah says: “This is another reason we should just legalize it.”
Rocah says his organization has seen less focus on pot busts here in Baltimore City, “and that is important because, as our report [“The Maryland War on Marijuana in Black and White”] showed, there was a huge disparity in the arrest records [between white and African-American people] that is reflective of larger inequities in the criminal justice system.” City Paper found that Baltimore drug arrests had decreased by nearly half in the two months following pot decriminalization (“Pot decriminalization brings sharp drop in arrests in Baltimore City,” Mobtown Beat, Dec. 17, 2014), though the proportion of those arrested who were African-American hardly changed.
This is the ACLU’s special focus, as people in Baltimore (and everywhere) have reported aggressive policing in black communities and of people of color, including random stops, pat-downs, and sometimes public strip-searches. The legal term of art for when police stop a person on the street and frisk them is “Terry Stop,” so named for the Supreme Court case that set the rules, Terry v. Ohio.“A Terry Stop is a pat-down, not a search for contraband,” Rocah says. “It is only a pat-down for weapons . . . it requires separate reasonable suspicion that the suspect is armed—different from whatever prompted the stop.”
But if a cop pats you for weapons and feels your stash, she can seize it, Rocah says.
“That issue, I believe is gonna have to be litigated,” says J. Wyndal Gordon, a Baltimore lawyer who handles criminal cases and police brutality matters.
“I’ve always challenge the idea they smelled marijuana . . . sometimes they even claim they can smell unburned marijuana! I think there needs to be some challenge to that.”
But, Gordon says, he’s not yet gotten a good test case. He wonders what will happen when someone crosses the Maryland state line from D.C. “I’m just waiting for the right case,” he says. “We’ll see what a conservative court would do with a case like this on the federal bench.”
Natalie Finegar, the deputy district public defender in Baltimore, says “I think it’s really interesting that you raised that,” adding that she’d not seen a case on the point but would poll the attorneys in her office. “The standard had been probable cause for a crime, but now it’s what? A PC for a civil citation? There’s got to be an underlying crime.”
The ACLU’s Rocah cautions cheeba fans to chill, seriously. “There is still a fair amount of public confusion [about decriminalization],” he says. “People think pot has been decriminalized so I now can walk down the street smoking a joint. That is not the case. It is still a civil offense. It is still the basis of a stop.”