Crime

‘I Smelled Marijuana.’

A common police ploy to stop and frisk people has made it less likely that defendants are judged by a jury of their peers.

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When I started working as a criminal defense attorney, marijuana arrests were common.   Not only would cops arrest people lighting up a joint in public, but they would often use pot as an excuse to justify stopping and searching targets.

I’ve conducted hearings where police cited as probable cause for searches nothing more than, “I smelled marijuana.”  Problem was, often no marijuana was ever found.  The claim alone gave police justification to do a myriad of things — search the person, open his bags, tear through his car and trunk (if he was driving), or even break down his apartment door.

It was such an easy thing to make up (“I smelled marijuana.”), that even judges began to grow skeptical of whether it really happened or was just being used as a dodge to stop people and search them.

Many times, the people stopped were young black and Latino men.  A cop might see a broken headlight on a car.  He would then claim he saw a “marijuana leaf” in the cup holder or smelled marijuana and thereby justify searching every cranny of the car and all the people riding in it.

Police hunches that something was amiss were sometimes correct.  Even if they found no marijuana (and had lied about smelling it), they might on occasion find other contraband — guns or other drugs.  Unfortunately, no statistics were kept for how often police used the “I smelled marijuana” excuse and found absolutely nothing.  Because the cases went no further, we lawyers didn’t meet the subjects.  A whole community of people, however, started resenting police.  They didn’t like being targeted and stopped for no reason.

It then became tough to get people of color to sit on a jury.  Many said they couldn’t be fair in judging a police officer because they’d been stopped and frisked for no reason. Those people would then be excused from the panel, leaving it that much less likely that the defendant (most often black or Latino) would be judged by a “jury of his peers.”

In cases where police did find marijuana when they said they “smelled it,” it was often because the person was smoking openly, in public. Those persons, too, happened to mostly be black and Hispanic men.  Once arrested, those young men would be brought to the precinct, booked, and spend a night or more in jail waiting to see a judge.

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If they were then convicted of a crime, that conviction would stay on their record.  For non-U.S. citizens, the consequences were dire.  While one conviction for a small amount of pot would be excused as a “petty offense,” more than one could permanently bar them from obtaining a green card or eventual citizenship.  The “I smell marijuana” excuse to make unlawful stops or to build criminal records was neither fair nor necessary. Thankfully, in recent years, things have gotten better — police still stop people smoking pot in public, but generally give them a summons instead of arresting them.  But how we approach the issue of pot-smoking as a country still varies wildly state to state.

Nine states and the District of Columbia have made marijuana legal, but it remains illegal to smoke pot in public in any of those states.  Because each jurisdiction has its own rules, it’s best to consult a state website to know exactly what’s permissible and what isn’t.  Other states have legalized pot for medical purposes only.  Thirteen states have hedged their bets by “decriminalizing” pot, making it only a civil infraction if caught possessing small amounts.  In most states even where pot is legal, it’s still illegal for people under 21 to buy.  It’s also illegal to consume it in a car. (Although some states allow carrying a small amount in a sealed container.)

The federal law adds further complications.  According to federal statute, a person smoking, possessing, selling or growing pot can be charged, no matter which state.  If federal jurisdiction is invoked — for example, anyone traveling over interstate lines with pot, or getting caught smoking a joint on the stairs of a U.S. post-office — can be prosecuted federally. The federal ban prevents pot growers in states where marijuana is legal from opening bank accounts, shipping out of state, taking out federally-mandated withdrawals from employee salaries.  In short, what the states are doing with one hand, the Feds are slapping back with the other.

The only way to simplify our convoluted approach is to do what our neighbor, Canada, just did.  Make it legal.  By doing so, there’s consistency, safe places to obtain pot, oversight on the quality of what’s being sold, tax revenue and freedom from worry that smoking a joint in public will bring a fine or arrest.   In Canada, it’s now legal to smoke pot any place it’s legal to smoke cigarettes. There’s still a 30-gram ceiling on how much can be possessed and a four-plant rule for growing at home but it’s a heck of a lot simpler than the U.S. state-by-state method with Big Brother positioned to pounce at any moment.

Eliminating pot smoking and low-quantity possession as a crime saves many young people the stigma of arrest and criminal conviction.

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What we’ve got now, doesn’t make sense economically, politically, or criminally.

Although I worry that the legalization of pot may encourage more people to try marijuana, which could lead to abuse, we’ve had these issues for decades with alcohol consumption.  Why should marijuana be treated as a bastard cousin?  Violations or crimes, like driving while stoned, can be identified and punished where necessary. Physically, although habit forming, marijuana is less harmful to the body than alcohol.  And while I’ve met a lot of angry drunks, I’ve never met an angry pot head.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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