Police have been pulling people over and stopping them on the street for years, claiming at the stops that they “smell marijuana.” In the past, this has been about all they need to say to cover their asses and claim they had “probable cause.”
But now, law enforcement agencies are going to have to come up with an alternative, since several judges, including those presiding over an Arizona court, just ruled that this isn’t going to cut it anymore.
That’s right: if police wish to establish probable cause, they are going to have to find another way besides just saying they smelled something that might have been marijuana.
The Arizona Court of Appeals handed down that verdict, saying that since the state now has legal medical marijuana, the odor of raw or burnt cannabis itself does not constitute probable cause. This ruling could logically be extrapolated to and applied as a reasonable defense in other states where medical marijuana is legal, and even those states bordering them.
High Times reported that in the decision, Judge Peter Eckerstrom explained that medical marijuana “is lawful under Arizona law,” and therefore “its scent alone does not disclose whether a crime has occurred.”
Eckestrom added that if this is not followed, the police would be violating the peoples’ constitutional rights.
“Were we to adopt the state’s suggestion that scent alone furnishes probable cause of a crime, medical marijuana patients would become second-class citizens, losing their rights to privacy and security, including privacy within their own homes.”
As we reported previously, and as the journal Law and Human Behavior found, the presence of marijuana cannot be determined on the basis of on odor alone. Animals, flowers, and garbage, all could give “false positives.”
Judge Eckerstrom said that this smell test is plain and simply “outdated” and cannot be used to “form a well-founded belief that a criminal offense was committed