From Consent to Marijuana

When I wrote last week’s post about how the evidence in drug cases has evolved from dropsy to consent, I had already decided what to write about this week. I planned on writing what I thought was the next step in the evidence evolution for the war on drugs – the smell of marijuana.

From the “anything you can do…” department comes Scott Greenfield who tells us that dropsy has not evolved into consent.

Consent has been part of the arsenal since those early, immature days.  As has the ability to use the few provable facts combined with the unprovable, like the “poignant” smell of marijuana, or the omnipresent glassine handed off, as seen from 700 yards away through two buildings and a parked car.  Whatever was needed, arose.

He’s right. Consent has been around and so has marijuana but it just seems that there has been a larger-than-life explosion in search cases with the smell of marijuana. This appears to be especially the case in traffic stops. I believe that it may have something to do with advanced technology.

In the old days a police officer pulled someone over and searched their car. If they needed a reason at court then consent was always a good answer. Nowadays though patrol cars are wired for video and audio recording. Pull someone over and it’s all on tape.  It’s good for prosecuting the bad guy.

The problem sometimes is that it’s all on tape – including the part where the defendant says: “No you can’t search my car.” At the risk of sounding cynical, the “smell of marijuana” takes care of that problem. To paraphrase Irving Younger: Surely, though, not in every case was the defendant unlucky enough to be smoking marijuana at the feet of a policeman.

And what if the traffic stop search doesn’t turn up any marijuana? Not to worry, there are other ways to handle the suppression hearing, including simply saying: I could’ve sworn I smelled marijuana.

From Simple Justice:

Times have grown more complicated, and the police have adapted.  No matter how good your fastball, you need to change it up with a curve every now and then.  Maybe even a spitball if the ump will let you get away with it.

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