Mass Court Says Smell of Pot Is Not Probable Cause of Crime

 A week ago, the Massachusetts Supreme Judicial Court issued an opinion in Commonwealth v. Long addressing whether the smell of unburnt marijuana is probable cause for a search warrant.  Police had discovered an illicit grow in a warehouse in Amherst after executing a search warrant based, in part, on the smell of fresh cannabis wafting from the building.  The defendant ended up losing the issue due to a long list of other suspicious factors which, all together, gave the cops probable cause for the warrant, but what is interesting to us here at this blog is the holdings on the odor.  

 The SJC made it clear (if it wasn’t already) that the mere smell of marijuana (either burnt or unburnt), without more, is insufficient to establish probable cause that a crime is being committed.  Further, the court said that a police officer’s sense of smell is an unreliable means to distinguish between a legal and an illegal amount marijuana in a car or a home.

 Everyone who has had the experience of a cop using the smell of marijuana as a pretext to violate their 4th Amendment rights should take heart.  Even if the smell of your weed is “very strong”, that alone does not give the police cause to search your backpack, your car, or your home.

 Now, as the defendant in Long learned, this is not a get-out-of-jail-free card if you happen to be operating a large illegal grow in a commercial warehouse with suspicious modifications, fishy late night activity, no medical registration, and a rap sheet full of cannabis convictions.  The lesson here should be clear: don’t use legal cannabis as a shield for illegal activity, and don’t let the cops use it as an excuse for illegal searches.

 Cops Can’t Tell Difference Between Hemp and Cannabis

 Keeping with the theme of the limits of police perception of pot, there is a growing number of stories across the country of law enforcement and prosecutors admitting their inability to enforce marijuana laws because they have no way to distinguish illegal marijuana from legal hemp.

 Hemp, of course, is now federally legal, while federally and in most states cannabis remains under some degree of prohibition.  What law makers and law enforcers are quickly realizing is that hemp and cannabis are the same plant, only distinguished by the percentage of THC (hemp must have no more than 0.3% THC).  No one, not even police, can tell the difference just by looking.  Nor can the plants be distinguished with field kits which test for the presence of THC but cannot determine the concentration.  The plant has to be sent to an appropriate lab for testing, and there’s probably not any police crime labs that are currently capable of running that test.

 The result is that low-level marijuana related criminal cases are being dropped and enforcement is being suspended in jurisdictions across the country.  States including Texas, Florida, Ohio, Tennessee, and Georgia (just to name a few) are dismissing cases and stopping prosecutions.

 Neither Can Police Dogs

 Making the issue even more interesting, it turns out that police are not the only ones unable to accurately sniff out the illegal weed.  Drug sniffing canines can’t tell the difference between hemp and high-THC cannabis.  And since dogs give the same signal for any kind of drug, officers cannot tell whether a dog is smelling legal hemp or cocaine.  This is leading to early retirement of current drug-sniffing canines, and new dogs will probably not be trained to smell cannabis.


Unsurprisingly to this blog, as the legalization of cannabis spreads, our freedoms grow stronger.

Click on the page below to see the full SJC opinion: