Legalizing Marijuana and Your 4th Amendment Protections
The nationwide movement to legalize the responsible use of marijuana is a badly needed change in public policy, because it will eventually eliminate all but a few of the 700,000 marijuana arrests that occur each year in this country (there will always be a few who insist on operating outside the limits set by legalization). That fact alone would justify ending prohibition. We are needlessly criminalizing millions of otherwise law-abiding marijuana smokers.
The Fourth Amendment Protections
But the struggle to legalize marijuana is also part of a broader movement to protect the individual from the awesome power of the state. And one of the important consequences of legalization will be to strengthen the Fourth Amendment protection we all enjoy from unreasonable searches and seizures.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment is part of the Bill of Rights, and was adopted in response to the abuse of the writ of assistance, a general search warrant, issued arbitrarily by the British in pre-revolutionary America and not requiring any probable cause to believe a crime had been committed. The amendment was first introduced in the Congress in 1789 by James Madison, and was ratified by the necessary three-quarters of the states in 1791.
Search Protections Eroded Over Time
But the clear intent of the Fourth Amendment has been eroded over the years by legal exceptions carved-out by the courts, including exceptions for motor vehicles, evidence of a crime in plain view, exigent circumstances, and consent searches, among others.
The law enforcement establishment all across this country have for too long used the marijuana laws to justify searches that would otherwise be a violation of one’s Fourth Amendment protections. In those states in which marijuana remains illegal, the courts have consistently held that the smell of marijuana provides police with the legal right to search the passenger compartment of an automobile, without a warrant. And traffic stops (often based on illegal profiling) account for a significant segment of the marijuana arrests that occur each year in this country.
So it is wise never to smoke in your car; and if you carry any marijuana in your car, even small amounts, you should keep it in a locked container in the trunk.
And in other situations, such as when the police come to your door for any reason, and claim they smell marijuana, that alone provides the probable cause required to obtain a search warrant to search the home. As does the sight of any marijuana or smoking paraphernalia, which is why one should never leave either marijuana or evidence of marijuana smoking (pipes or papers or ashtrays with roaches) in plain sight.
Extraordinary Olfactory Claims By Police
To take advantage of this exception to the 4th Amendment, police often claim extraordinary olfactory prowess. And it is not just the smell of burning marijuana (or recently burned marijuana) that the police claim they can identify. They also claim to smell raw marijuana that has been sealed in odor-proof packaging, from a significant distance.
And far too frequently, the police are flat-out lying when they make that claim, apparently believing the end justifies the means. By using this ruse, they gain access to people and places they would otherwise be unable to go.
Good criminal defense lawyers often challenge these searches with a motion to suppress the evidence, offering testimony from the defendant that no one had been smoking marijuana in the car when it was stopped for an alleged traffic offense. But these are seldom successful, as the judge generally believes the testimony from the man in uniform, even in situations in which the defendant presents scientific evidence challenging the officer’s ability to smell the marijuana.
Some in law-enforcement acknowledge their primary opposition to legalizing marijuana is that it will reduce their ability to arrest people whom they arbitrarily believe are involved in more serious crime. This is especially a problem in minority communities, and has contributed to the distrust of police in those communities.
By legalizing marijuana, we actually help the police begin to rebuild some credibility with the communities they serve. Once they are again seen as public servants keeping our communities safe from serious crime, instead of heavy-handed bullies looking for an excuse to search and arrest otherwise law-abiding citizens who smoke marijuana, law enforcement will once again find they are supported and valued by average citizens.
The Good News
The good news is that as we gradually legalize marijuana in more and more states, we are also restoring the right of citizens in those states to be free from unreasonable searches and seizures. Once marijuana is no longer contraband, the smell of marijuana no longer provides probable cause for a search, whether in an automobile or in a home.
This fight to legalize marijuana is only incidentally about marijuana; it is really about personal freedom. And with each new legalization victory we return a measure of personal freedom to the citizens of that state.
This column first ran on Marijuana.com.
February 12, 2016