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Because Officers Cannot Tell the Difference Between Illegal Marijuana and Legal Hemp, Should Vehicle Searches Based on Odor Still Be Allowed?

weed-marijuana-300x200Remember those scratch n sniff stickers growing up?  It seems weird that, somehow, you can put the smell of just about anything onto a sticker.  Fruity smells are pretty popular: orange, grape, apple, strawberries. These stickers have evolved since I was a kid, and if you go on Amazon as much as I do (come on, you know you do), you’ll find scent stickers for popcorn, avocado, and yes, animal smells.  Even unicorns.  Hey, why not? My guess is that unicorns smell like a rainbow.

Now, just because something “smells like” an apple, or a bunny rabbit, doesn’t actually mean that there is an apple somehow engrained upon a sticker.  I hate to break it to you, but your nose can be fooled.  Your nose can lead you to false conclusions.

I remember growing up in St. Louis and at about age 15, I went to my first arena concert.  It was at the “Checkerdome” (destroyed decades ago, but fond memories linger), and the band was Loverboy.

As I would come to learn, Checkerdome concerts were like a bubble of fairly lax marijuana laws in the same way that Indian reservations host more gambling options than other places.  At the beginning of the show, as soon as the lights went out, half the place lit up.  There was so much marijuana smoked in that building that even the folks not smoking weed would probably test positive for the next 30 days.  So, when my dad picked me up from the show–he was pissed.

“Son, do you want to tell me something?”

“No dad, it was an awesome concert.  They had these lasers, it was great.”

“Son, you were smoking weed, weren’t you?”   I wasn’t.  Not technically.  But as I soon realized, every inch of me smelled like it.  I have a married friend whose wife uses a similar test to smell for evidence of cheating, but that’s a story for another day.

Supposedly, law enforcement officers have better scent detection than the rest of us, but the conclusions they draw from their sniffs may not be as reliable as they once were.  There are legal consequences to an officer detecting an odor of cannabis.  If an officer smells the odor of marijuana coming from your car, everything & everyone in your vehicle can be searched.

The reason for this is that the odor of cannabis supposedly provides an officer probable cause that something illegal is afoot.  Probable cause is a squishy subject, one that entire seminars and books are devoted to (well, maybe not an entire book, but several chapters).  When we say that an officer has “probable cause,” we mean that the officer reasonably believes there is “a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213 (1983).

Anyway, these times, they are a-changin’.

We now have legal medical marijuana, which smells exactly like illegal marijuana.

We now have legal hemp, which smells exactly like illegal marijuana.

In light of these recent legal developments, should the odor of cannabis still provide probable cause to search a vehicle?

Before the legalization of hemp, most states, including Florida, held that the odor of cannabis provides probable cause to search a vehicle.  But, it seems that this position needs to give a little, now that there are even more reasons why a car may, legally, smell like something that is also illegal.  And, it is the combination of these two issues, hemp, and medical marijuana, that should cause our courts to reconsider its current position.

With that in mind, let’s move on to the real-life case of the day, State of Florida vs. J. Ruise, FLWSUPP 2802RUIS (Orange Co. 48-2019-CF-012934-O, March 20, 2020).   Ruise was stopped for making a wide left turn and not having his headlights on.  When the officer first made contact, he smelled the odor of cannabis.  Based on this odor, the officer searched both the car and Mr. Ruise’s person.  Nothing was found on Mr. Ruise, but inside the car, there was a baggie of weed, a jar of weed, and a pill bottle with suspected MDMA or ecstasy.

The defense attorney filed a Motion to Suppress all the evidence found in the car, arguing that the officer did not have probable cause to search because of the convergence of two recent legal developments.

First, Ruise’s attorney argued that, effective July 1, 2019, Senate Bill 1020 (the “Hemp” Bill) makes the cannabis plant legal in the State of Florida.  The hemp plant creates a problem for law enforcement, because the plant is exactly the same as a marijuana plant–but for the THC content.  So, if you burn hemp, it smells exactly like illegal cannabis.  If you have a baggie of hemp, it smells exactly like fresh illegal cannabis.  It looks exactly like illegal marijuana.  There isn’t a human, nor dog, who can differentiate between the two.  It takes a laboratory full of scientific contraptions with blinking lights and bubbling beakers to sort out the difference between hemp and marijuana.

With hemp being legal,

With hemp being indistinguishable from illegal marijuana,

With medical marijuana being legal,

Is there still “a fair probability that contraband or evidence of a crime will be found?”

The judge denied Ruise’s Motion to Suppress, reasoning that “until the legislature legalizes recreational marijuana, law enforcement still have probable cause to conduct a search on the basis of the smell of cannabis.”

Clearly, if you ignore the hemp issue entirely, most states that have made medical marijuana legal still permit a search of a vehicle based upon the odor of cannabis.  As one court put it, “while there may be innocent explanations for the odor of marijuana inside a vehicle, the concept of probable cause is based on probabilities and does not require officers to rule out all innocent explanations for suspicious facts.” State of Nebraska v. Seckinger, 920 N.W.2d 842 (Neb. 2018).

As of today, there are not many cases out there, like Ruise, addressing the intersection of legal hemp with medical marijuana, but one case out of North Carolina noted that the smell of marijuana still supports a determination of probable cause even if some hemp products are legal because “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.'” United States v. Harris2019 WL 6704996 (E.D. N.C. Dec. 9, 2019).

I’m not convinced that the odor of cannabis will always provide probable cause for a search of a vehicle up until marijuana is legal recreationally.  For example: let’s say you have a bunch of cars parked outside of a legal medical marijuana dispensary.  Let’s say law enforcement waits until a patient leaves the dispensary, then pulls over the car he knows just came from the dispensary.  The officer searches the car based upon the odor of fresh cannabis.  Is this a legal search?  Every patient leaving a dispensary, getting back into his car, is probably going to smell like weed.  Is there probable cause of criminal activity based upon the odor of cannabis from a vehicle that left the parking lot of a medical dispensary?

Example Number Two: what if a driver really likes the smell of weed? I have a friend that really likes BBQ, and he has candles that smell like BBQ. With hemp legal, there are all sorts of air fresheners that smell like you’re smoking weed, which then makes your car smell like it is about to get searched.  If the officer sees the “hemp air freshener” hanging from your rearview mirror, or if the driver shows the officer a baggie of officially legally labeled hemp product–does the officer still have probable cause to search the vehicle based upon the odor of illegal marijuana?  (does a Jack Daniels air freshener get me out of a DUI?  Doubtful.)

Lots of questions here.  I don’t see how the holding in Ruise can stand.  Maybe I’m being optimistic here, but I expect to be writing a few more case review articles that will not agree with the ruling in Ruise.  Just saying.

POST SCRIPT ON THE INCREASE IN STICKER SALES WITH THE LEGALIZATION OF HEMP: I have it on good authority from a dear friend of mine that all shipments of weed from legal recreational states to Florida now comes packed with “100% Hemp” stickers.  Again, just saying.