Many Americans are familiar with the odor produced by marijuana, even if they don’t use it themselves. That distinctive, pungent smell has been the basis of many interactions between police officers and members of the public.
Dallas voters recently tackled the issue with a measure designed to curb police authority in instances of potential suspicion of drug possession.
Is Odor Evidence?
Police do not have the right to search wherever and whenever they please. The Fourth Amendment of the Constitution forbids unreasonable searches and seizures. In order to conduct a search, police need either a search warrant or probable cause.
What is at issue now is whether the smell of pot gives officers this probable cause. Traditionally, it has been considered enough. A change to Texas law allowing hemp, however, means that a pot smell doesn’t necessarily indicate an illegal substance.
The Rules Regarding Hemp
Many states have taken the step of legalizing marijuana for medical or even recreational use. While Texas has not taken that step, it did make a change to the definition of marijuana in 2019. The new definition excludes hemp. Hemp is the same plant as marijuana but with much lower levels of THC.
THC levels cannot be determined by smelling the smoke. That telltale odor can be produced even at THC levels that would not trigger criminal liability. Therefore, some people believe it shouldn’t be considered the basis for a search.
Dallas voters believe so, based on the passing of Proposition R, which prohibits searches based on smell alone except in specific cases. If the smell does not mean a crime has been committed, it should not be used as probable cause to justify a search.
Other Courts Have Already Agreed
There is nothing surprising about Texas laws differing from laws in other states. The momentum of the movement to legalize marijuana has not yet touched the Texas legislature. There is only so much impact the rulings of other courts can be expected to have here.
That said, several other states have changed their stance about searches and seizures, especially when their marijuana rules changed. Many of the states involved also decriminalized cannabis in smaller amounts; still, the same principle applies: a non-criminal act could have caused the smell.
Questionable Searches
There is no shortage of stories about searches that started with the claim of “smelling marijuana” that turned up no actual cannabis. It’s basically impossible to prove that someone didn’t smell pot when they claim they did. That gives police a potential way around the Fourth Amendment if they really want to conduct a search.
Putting an end to the pot smell justification of searches would have the added benefit of reducing the number of questionable searches, particularly those involving motorists.
Contact an Experienced Defense Lawyer
At Lee & Wood, LP, our Texas criminal defense attorneys know how to protect you. We have handled countless cases involving marijuana and its derivatives. We can help protect your rights by mounting a strong, knowledgeable defense. Contact us at 817-678-6771 to get started.