Oklahoma is not the first State to enact medical marijuana statutes. In this first of 3 blog posts, we will discuss how other States apply the 4th Amendment after medical (and recreational) marijuana statutes are enacted. Part 2 (click here) will discuss marijuana’s legal status in Oklahoma and provide practical advice on how Officers can adapt their investigations and reports today to ensure that they are as defensible as possible regardless of how our Courts choose to apply search and seizure caselaw. Part 3 (click here) will discuss the continued viability of drug detection K9s trained to alert to marijuana.
Since marijuana possession and use remains illegal under Federal law, our 4th Amendment guidance comes from State Courts in the area of medical and recreational marijuana. Those cases essentially fall into 3 groups. The first are States that hold there is no impact on search and seizure case law. The second are States that consider the protections in the statutes as part of the totality of the circumstances analysis for search and seizure purposes. The third group comes from 2 recreational marijuana States that hold that legalized recreational marijuana significantly impacts the search and seizure caselaw.
Group 1: Medical (and Recreational) Marijuana Changes Nothing
The first group of cases come from California, Colorado, Connecticut, Illinois, Maryland, Minnesota, Oregon and Washington. Many of these cases offer common themes in their analysis as to why medical and recreational marijuana statutes have no impact on existing 4th Amendment caselaw.
Marijuana possession and use is still illegal. The manner in which each State implemented medical and recreational marijuana protections varied, but none of the changes altered this legal reality. California (People v. Waxler[i]), Illinois (In re O.S.[ii]), Maryland (Robinson v. State[iii]), Minnesota (State v. Ortega[iv]) and Washington (State v. Fry[v]) hold that, since possession and use remains illegal, the odor of marijuana constitutes probable cause to believe illegal activity is occurring even when a medical marijuana patient is involved.
These Courts hold that the medical/recreational statutes do not “legalize” marijuana but, instead, create a protection for certain individuals. In California (People v. Strasburg[vi]), the Courts view this protection as being “a limited immunity [from prosecution] – not a shield from reasonable [police] investigation.” Washington (Fry) and Colorado (People v Mendez[vii]) both view the protection as being an affirmative defense. Washington holds that judges and juries, not officers, should decide if an affirmative defense applies[viii].
Some States decriminalized possession of small amounts of marijuana by converting possession of limited amounts to a civil violation. Illinois (In re O.S.) and Maryland (Robinson) both hold that this decriminalization is not the same as legalization so possession of any amount of marijuana is illegal. Minnesota (Ortega) takes a different approach. While the possession of limited quantities is not criminal in Minnesota, possession of excess amounts is still criminal. Minnesota holds that, if an officer knows there is any amount of marijuana present (either through smell or in plain view), then this is probable cause for the officer to believe that an unlawful amount might be present since “the presence of any amount [of marijuana] logically suggest that there may be more.”
Several Courts focus the 4th Amendment analysis on the fact that marijuana is still treated as contraband. Maryland (Robinson), Connecticut (State v. Brito[ix]) and Oregon (State v. Smalley[x]) hold that probable cause for a vehicle search applies to searches for evidence of criminal activity or for contraband. Since marijuana is still contraband, it may be seized even when lawfully possessed. If officers have probable cause to believe marijuana is present, then officers have probable cause to search and seize the contraband.
California and Colorado both initially adopted medical marijuana statutes and then expanded to recreational marijuana. California (People v. Fews[xi]) holds that this expansion did not alter their prior holdings in medical marijuana cases, and that recreational marijuana does not impact the 4th Amendment analysis when marijuana is involved. Colorado reached the opposite result.
Colorado’s medical marijuana statutes offered only an affirmative defense that “has no direct relevance to a police officer’s initial determination of probable cause.” When Colorado expanded to recreational marijuana, the Colorado Supreme Court (People v. Zungia[xii]) held that this expansion altered the 4th Amendment landscape. Since anyone can now lawfully possess marijuana, the Court held that the odor of marijuana was no longer probable cause to believe a crime was being committed but was relevant under the totality of the circumstances.
Group 2: Evaluate the Totality of the Circumstances in Light of the Medical or Recreational Marijuana Statutes
When Colorado expanded to recreational marijuana, it joined this second group of States that include Arizona, Michigan and Vermont. The 4th Amendment requires a review of the totality of the circumstances to evaluate whether probable cause existed based on all the information available to the Officer at the time[xiii]. In these States, the Courts view the lawful, statutory possession limits as being relevant to the totality of the circumstances.
Arizona (State v. Sisco[xiv]) asked whether, the totality of the circumstances, the medical marijuana statutes set a higher bar for establishing probable cause (an “Odor plus” test) or merely created factors that could dissipate probable cause that would already be established by the odor of marijuana (an “Odor unless” test) An “Odor Plus” test would require that the odor of marijuana be coupled with additional facts that suggest possession of an unlawful amount of marijuana before probable cause could be established. Arizona rejected this test, and adopted an “Odor unless” test. Under the “Odor unless” test, the sight or smell of any amount of marijuana is probable cause to believe a crime is being committed since marijuana possession is still illegal. The “unless” part of the test requires officers to evaluate whether additional facts that become available suggest that the person could only be possessing a lawful amount of marijuana.
Michigan (People v. Brown[xv]) and Vermont (State v. Senna[xvi]) hold that an Officer who has probable cause to believe a person is in possession of marijuana has no legal duty to investigate whether that person is a licensed medical marijuana patient. Michigan makes clear that, once an officer has knowledge that the person is a licensed patient, they must consider that fact in evaluating whether there is probable cause to believe that there person is in possession of an unlawful amount. That said, Michigan holds that the odor of marijuana is probable cause to believe a patient is in unlawful possession unless the “clear and uncontroverted evidence” indicates that the amount of marijuana possessed is within the lawful limit.
Vermont (Senna) initially joined the first group of States in holding that odor of marijuana is probable cause to believe a crime is being committed. Vermont clarified this view in 2019 (Zullo v. State[xvii]) and now holds that the question is whether the odor the Officer smelled actually suggests that the licensed patient is in possession of an unlawful amount of marijuana. The faint odor of burnt marijuana does not suggest possession of an excessive amount of marijuana.
Oregon (State v. Bingman[xviii]) initially adopted a test similar to the “Odor plus”, holding that the odor of marijuana did not establish probable cause absent additional facts suggesting possession of an unlawful quantity of marijuana. Oregon would later qualify this view in the Smalley case[xix] by focusing on marijuana’s status as contraband.
Group 3: Once You Go Recreational, You Can’t Go Back (to Traditional Search and Seizure Caselaw)
Massachusetts and New York hold that the legalization of recreational marijuana dramatically changes the probable cause analysis. Both allow possession limited amounts of marijuana. In Massachusetts, neither the odor of burnt (Com. v. Cruz[xx]) nor fresh (Com. v. Overmyer,[xxi]) establish probable cause to believe the person is in possession of an unlawful amount of marijuana. Officer descriptions of the strength of the odor are rejected as “subjective” and a “dubious means for reliably detecting the presence of a criminal amount of marijuana” since they do not believe that “a human nose can discern reliably the presence of a criminal amount of marijuana.”
The odor of marijuana has relevance in New York when officers are investigating DUI-D. But when the only issue is possession, New York (People v. Brukner[xxii]) holds that the odor of marijuana does not establish probable cause because “It is not a crime … to smell, or even reek, of marihuana while standing in public.”
Conclusion
Oklahoma will likely consider the approaches taken in other States when deciding how Oklahoma’s medical marijuana statutes might impact existing search and seizure case law. More likely than not, Oklahoma will adopt one of the positions taken by courts in the first two groups discussed above. In Part 2 (click here), we will discuss how your Police Department can prepare itself as we await an eventual ruling from our Oklahoma Courts.
Return to OMAG's Medical Marijuana page
Footnotes:
[i] 168 Cal. Rptr. 3d 822 (Cal. App. 2014)
[ii] 112 N.E.3d 621 (Ill. App. Ct. 2018)
[iii] 152 A.3d 661 (Md. Ct. App. 2017)
[iv] 749 N.W.2d 851 (Minn. 2008)
[v] 228 P.3d 1 (Wash. 2010)
[vi] 56 Cal.Rptr.3d 306 (Cal. App. 2007)
[vii] 948 P.2d 105 (Co. App. 1997)
[viii] Fry relied on and quoted McBride v. Walla Walla County, 975 P.2d 1029 (Wash. 1999) for this proposition, wherein the McBride Court held, in a batter/self defense situation, that “the officer is not judge or jury; he does not decide if the legal standard for self-defense is met.”
[ix] 154 A.3d 535 (Conn. App. Ct. 2017)
[x] 225 P.3d 844 (Or. 2010)
[xi] 238 Cal.Rptr.3d 337 (Cal. App. 2018)
[xii] 372 P.3d 1052 (Co. 2016)
[xiii] U.S. v. Arvizu, 534 U.S. 266 (2002)
[xiv] 373 P.3d 549 (Az. 2016)
[xv] 825 N.W.2d 91 (Mich. 2012)
[xvi] 79 A.3d 45 (Vt. 2013)
[xvii] 205 A.3d 366 (Vt. 2019)
[xviii] 986 P.2d 676 (Or. 1999)
[xix] Smalley held that Bingman never held that “odor, by itself, cannot support an automobile search.”
[xx] 945 N.E.2d 899 (Mass. 2011)
[xxi] 11 N.E.3d 1054 (Mass. 2014)
[xxii] 25 N.Y.S.3d 559 (N.Y. City Ct. 2015)
DISCLAIMER: The process leading up to the implementation of medical marijuana in Oklahoma has been a long one and is still on-going. OMAG attorneys have sought to keep updating this webpage with the most up-to-date information possible. OMAG members seeking advice on the medical marijuana statutes should be aware that there may not be clear-cut answers on some of the issues. OMAG offers this guidance to help your municipality make informed decisions about policies and procedures, directly or indirectly related to medical marijuana, until some of the issues can be decided by the Legislature or the Courts. If you have questions or concerns about the information contained in these articles, please email one of the attorneys in the OMAG Legal Department at omaglegal@omag.org.
