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How Should I Handle Police Questioning When Stopped and Investigated Based on the “Odor of Marijuana”?

The war on drugs has been, and continues to be, one of the most ineffective, expensive and damaging government policies in American history. And as it relates to marijuana, it has not only been a complete waste of money and resources, but it has been an easy, if often illegal, basis for police officers to circumvent 14th Amendment protections against unreasonable searches and seizures allowing police officers to invade privacy and property based on the alleged “odor of marijuana.” So often, police officers claim to smell marijuana, which leads to a prolonged search only to find that there is none. In court, they can simply argue that the defendant must have marijuana prior to the search, and the 14th Amendment protections evaporate. Essentially, the “odor of marijuana” can become a blanket substitute for the 14th Amendment prohibition against unreasonable searches and seizures.

Some progress has been made in this area as states have legalized marijuana recreationally. Minorities are still being arrested for marijuana at much greater rates, so systemic problems remain in force, but legalizing marijuana has provided some protection against these unnecessary and counterproductive arrests and searches.

At the federal level and in states like Florida, cannabis is not fully legal, but hemp is. While the legality of hemp certainly has not received the same kind of praise and publicity that marijuana legalization gets, it has created an interesting dynamic when it comes to police encounters and searches and seizures. Before hemp legalization, police officers would stop a vehicle or approach a person in certain areas, claim to smell marijuana and then assume full legal authorization to search that person’s property. Now, that is not so clear. First, we need to understand what hemp is under the federal and state laws. Hemp is basically the same as the cannabis plant but with less than 0.3% THC content. So, legal hemp looks, smells, feels and tastes just like illegal marijuana. A chemical test to determine the THC content of the substance is required to distinguish legal hemp from illegal marijuana. This is critical because the naked eye, mouth, nose or hand cannot tell the difference between what is legal (hemp) and what is illegal (marijuana). As a result, police officers cannot just search people or vehicles based solely on the “odor of marijuana” because what they have always assumed was marijuana might be hemp, which is now legal. And police cannot search people or property based on the assumption of illegal activity.

Police officers have tried to negotiate this new environment by asking the driver or suspect certain questions. Based on the arrest reports we have read, the police officers really have no idea how to address these suspects to develop the reasonable suspicion or probable cause legally necessary for a detention or search. For example, they will ask if there is any marijuana in the car. And they will ask if there is any hemp in the car and whatever the answers may be, police officers assume they have the legal right to detain or search. However, if someone answers yes to the marijuana question but no to the hemp question, it is not clear how that person would know whether the substance is marijuana and not hemp without a chemical test. If the supposedly trained police officer does not know what is hemp versus what is marijuana based on look or smell or feel, why would we assume the suspect knows?

So what is the best way to respond if a police officer stops you in a hemp legal/marijuana illegal state? The default position, which is the best rule in just about every situation dealing with police, is to remain silent. If it’s a traffic stop, you can provide your name and driver’s license and insurance, but do not answer any questions that are related to anything that could be perceived as illegal. This is such fundamental, pervasive, simple and quality advice, but so few people follow it. I have no idea why. I suppose people think they can talk their way out of these situations or it will get worse if they anger the officer by not giving them what they want, but in almost every scenario, talking results in more trouble.

Otherwise, and I will provide this for academic reasons because you already know that you should just remain silent, if the officer asks if you have marijuana on you or in the car, the answer is no. If the officer says he smells it or just proceeds to the next question and asks if you have hemp on you or in the car, you can say maybe or you think so, assuming you do actually have something on you or in the car. Are you lying? Not really. Even if you think you have marijuana because that is what you bought, without a chemical test, you do not know what you have. And neither does the officer. Plus, this is all performative. The officer, who is not bound by facts or ethics, is just trying to make an arrest for something ridiculous (i.e. a plant) and, presumably, you do not want to get arrested for something ridiculous, so it becomes a contest. And you can win this contest and possibly avoid getting arrested, but certainly put yourself in a better position to defend your case, by either remaining silent or at least not admitting to illegal conduct, especially when you are not even sure what you are doing is illegal.

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