Legalizing Marijuana and Your 4th Amendment Protections

  • by Keith Stroup, NORML Legal Counsel February 12, 2016

    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.



    32 responses to “Legalizing Marijuana and Your 4th Amendment Protections”

    1. Cat Cassie says:

      So in states where it’s legal you don’t have to worry about keeping it locked up in the trunk of your car? I would never use it in the car anyway but I do transport it from a legal shop in Pueblo 50 miles back to where I live. I have just been keeping it in the glove box until I get home. And the container is still in the closed paper bag with the receipt stapled to it. I never really gave it much thought on where to keep it while driving.

    2. Don M says:

      Bravo Mr. Stroup for another excellent article. You are just so spot on!

      For the reasons mentioned in your article, I have come to believe that the police are no better than criminals in many cases and I just dont’ trust them.

      In fact, I advise everyone out there to say this the next time the “Fraternal Order of Police” calls them for a donation. Simply tell them that they would be happy to donate ($200, $300, or whatever). Wait for a response, and then tell them, that the donation will be made once they get behind legalizing marijuana.

      For now, their fraternal order lobbies to keep marijuana illegal and love the proceeds they get from fines and property theft (they call it civil asset forfeiture). For now, screw them!!!

      • harry says:

        I’ve been saying that since the mid 90’s. plus I worked for the Gehl group back then that did the calling for the fop. the fop only got about 15% of the money raised.

    3. Rod is on the Gas says:

      I took liberties with your meaningful statement…..

      “This fight to ‘prohibit’ marijuana is only incidentally about marijuana; it is really about ‘constitutional’ freedom.”

      I find that we devote so much effort on legalization……we fail to fix the problem at the source. Arbitrary prohibition.

      Rather than chase around after thousands of minor victories, committing to one single act of freedom, repeal of prohibition, is required. This prohibition ‘disease’ is overdue to be eradicated from America’s government.

      • Andy says:

        Couldn’t agree more. Regardless of the substance, prohibition is the problem and it’s epic failure is not just marijuana prohibition. The very fact is, it should not matter what the dangers of using a substance as whether to prohibit it or not. I feel that the choice to use anything should be up to the adult user not the government. The governments roll should merely be regulation… Regulating access by age to adults… Regulating where, when and how substances are sold. Regulating where substances are used, ie private property (commercial or home) and possibly not in public. Regulating laws such as driving under the influence. Governments only other possible roll in the matter should be public education of risk/benefit of use. Arresting, locking up, creating criminal records, ruining ones future over a use in the name of protecting them is not acceptable and ironically does not prevent one from choosing to use. The ones who promote treating it like a medical condition and forcing people into rehab treatment are honestly no better than the status quo of the last 100 years.

        End prohibition, end the drug war, end this culture war against Americans!

    4. Todd says:

      So very true, Keith. Prohibition of weed violates a lot of the Bill of Rights which is the real written law of this land. Weed is a religion in Jamaica and peaceable assembly anywhere, and needs to be redressed since identified as medicine (Amendment 1), micromanaging our homes and families is not allowed since we are not at war with plants (Amendment 3), seizure of assets for growing medicine is unreasonable (Amendment 4), compulsory process for obtaining witnesses in his favor, testimony that weed is actually a good thing, is not taken seriously (Amendment 6), common law applies since most people have long favored legalization (Amendment 7), cruel punishment for growing medicine (Amendment 8), and the right to new vices (Amendment 9).

    5. TruthSayer says:

      I have always believed the war on drugs is a war on the American people by its government. I have successfully eluded authorities for my 39 years of Cannabis use but have known many good, hard working people who have not been so lucky.
      I was born a natural Libertarian and am a Libra to boot. Not a good combination for the unbalanced world in which we live.
      When I was young I was taught that we lived in the freest country in the world and that thou shalt not kill. Only to find out later that you can be locked in a cage like an animal and all your property confiscated. Not for harming someone or taking their property but simply because you disobeyed the government after they told you not to do something.
      If that wasn’t a big enough let down, I then find out the part about thou shalt not kill isn’t exactly true either. Evidently the US government has a deal with God to where if THEY need you to do some killing, you can still get into heaven. I saw this at an early age as my Uncle was shipped off against his will to the jungles of Vietnam never to return.
      I hope he went to Heaven and I hope to one day live in a country like the one they told me about as a child.

      • jeanine says:

        I just bought land in Penn Valley, Ca. We are going to build a house. I just went there & there’s a police posted note saying they want to do a marijuana search on the land. What is this about. Just bought land & it’s NOT a nice welcoming, ya know?

    6. Wade Rawluk says:

      Unfortunately things are different when it comes to second ame4ndment rights because all marijuana users are forbidden by federal law from having any guns. When it ncomes to pot smokers potsmkers are all second class citizens. You can be an irresponsible alchoholic who thru the i8mproper handling of weapons while drunk can still have second amendment rights but no matter how responsible the cannabis user the cannabis usert even while he is not high can never have 2nd amendment rights because of a 1968 piece of gun control legislation. Cannabis users, like slaves are treated like onlythree quaters of a person who are undeserving of equal rights. The only way to fix this problem is on the federal level by taking cannabis off the list of controlled substances entirely, thereby making the 1968 law pertain only to drugs other than cannabis still on the list6. It seems like the only way pot smokers can regain their 2nd amendment rights is to elect Sanders as president since only Saqnders hgas promised to de-schedule cannabis entirely. 4th amendment issues can improve relatively on a state by state basis for pot because of the laws involved but improvement on the 2nd amendment will only absolutely come all at oncewhen de-scheduling is achieved.

    7. Julian says:

      Well said Keith; We need you in the White House and in Congress as America’s official Marijuana Adviser. I was especially impressed by the following statement;

      “Once [law enforcers] 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…”

      I found myself telling this to my Congressman on citizen lobby day. I had to say “despite what the Sherrif’s association will tell you while they’re lobbying to maintain prohibition using our tax dollars, marijuana legalization reduces crime and restores justice by allowing prosecutors to focus on violent crimes instead of non-violent drug possessions.”

      The collusion between asset forfeitures, prosecutors, law enforcement and fabricated evidence of marijuana smell or smoke has for too long unjustly violated our 4th amendment even to the point of creating “parallel” evidence fabrication programs such as the DEA’s Special Operations Division, signed into law by President Clinton in 1994. These programs spread corruption like infection through local governments that target minority communities, especially those with valuable property and low resources or access to a good lawyer. We saw this in Ferguson, Missouri and the city council there still refuses to follow the new DOJ guidelines to stop targeting minorities even in the spotlight of corruption, because the local government has become so saprophytic the parasites have lost the capacity of imagination for drawing in fairly taxed revenue to balance the city budget. In these cases, burn the ticks out, replace the city council, train police officers that represent their community and legalize cannabis. As a result, violence is reduced, trust is restored and the budget has a surplus for continuing public education and certification of both public officials and the general public.

      • Felton says:

        The addition last year to the fourth is being routinely ignored, when states use fines and excessive taxes, were told that states could no longer use these practices to fill an income gap for the states budgets enhancement. In many states this has never been challenged and is routinely ignored and rarely ever challenged by lawyers!In North Carolina they will not even allow you to see the evidence it is done by conference call and you have to rely on the fox guarding the hen house not to lie! In any other case one would have the right to examine and even send off for independent testing such as DNA, Guns and any other except cannabis! What happened to the right of the rules of discovery for Cannabis or are we under a different kind of law? Right. Is gets no worse than that as in my case they have 35,000 reasons to lie as I’m totally at the mercy of the liars that I witnessed putting plants they cut put into plastic trash bags( MOLD City) and plenty of other preservation issues that could come no where near the amount (over 10 lbs, which is considered trafficking, in fact anyone familiar with that process knows it is most likely well under that and the actual usable content at around 2.5 pd, way under a trafficking charge!

    8. Mark Mitcham says:

      I’m no scholar, and I don’t know much about consitutional law. But technically I’ve been a criminal since I was sixteen, the age at which I began a criminal, ongoing “quest for doobage,” which continued until Colorado legalized it many years later. And so it would be disingenous of me to say I’ve had a great respect for Law during my lifetime.

      I always thought reefer madness was pure stupidity, and it is; but it is crazy like a fox, as they expression goes: there is a purpose to it. That was the part I missed.

      It took me a very long time indeed to understand that marijuana prohibition is not about marijuana, it’s about power.

      I spent decades, literally, processing the arguments and counter-arguments; there are the enormous lies told in justification of prohibition, and there are the point-by-point rebuttals. But it was all so childish! When you are spending all your time explaining the obvious to someone who just can’t seem to understand the obvious, eventually you may consider the possibility that they are playing you!

      It finally occurred to me that I was being played. The prohibitionist were never going to run out of bullshit! No matter how many times you exposed it as such, they would just plop another big pile of bullshit on the table, and the game would start all over.

      I couldn’t understand why law enforcement obsessed over crimes so minor they weren’t even crimes at all. But now I see why, and it is as Keith says: for Power. Power over you. If they can fuck with you over marijuana, they can fuck with you over anything.

      But with legalization and freedom, people can begin to make it about marijuana; that is, they can begin to understand and benefit from all the wonderful things this miracle medicine can do!

      • harry says:

        I always enjoyed debating prohibitionist because it was always easy to tell when I had won with intelligent thought, they’d always say, ‘it doesn’t matter, it’s against the law’

    9. Andy says:

      I additionally have to wonder if the constitutionality of mandatory work drug tests are constitutional, because most are driven from federal rules. If a company has a federal contract they are required to have drug testing, essentially making non-warranted search and seizure. I suppose someone could potentially argue that you could simply refuse to submit a test, but being fired for not submitting a test would be a punishment without being convicted in a court of law. With corporations being required to have drug testing usually based on state run workers comp and government contracts, it is a directive being forced by government. Any thoughts?

      • Dudleed says:

        I also believe that random drug testing is clearly unreasonable search.

        • Portal says:

          Absolutely agree with you. All this marijuana prohibition things has nothing to do with rational, reasonable arguments or even discussion. Its just about power and thats it.

      • Demonhype says:

        Did not realize that Normal blog now allowed replies. Please see my response to this farther down the comments. (Spoiler: you are even more right than you realize!)


    10. KILLERBEE says:

      I haven’t used the Buddha in over 3 years due to my career path along with it being illegal. I’ll drink anybody under the table at this time. But if weed was legal, I honestly don’t think I would drink as much. Keith, your awesome at what you do and not only do you educate, you give me hope. Keep it up brother. One day we’ll get off work and smoke worry free. Then your articles will really blow my mind. Thank you for your hard work and dedication.