Cops May Still Use Marijuana as a Reason to Search You — Even After Legalization

The smell of marijuana has been used by law enforcement as probable cause to stop drivers. Even though weed is now legal in California, driving while stoned isn't, so they may still be able to use it as grounds for a search.
The smell of marijuana has been used by law enforcement as probable cause to stop drivers. Even though weed is now legal in California, driving while stoned isn't, so they may still be able to use it as grounds for a search.
Ted Soqui

For as long as the War on Drugs has persisted, marijuana and its skunky, distinct smell have been used by law enforcement as probable cause to search vehicles and detain individuals on the street. Now that recreational weed is legal in California, it would seem the validity of this oft-used technique may be on shaky ground. 

But Ryan A. Casey, an attorney at West L.A.’s Panish Shea & Boyle LLP, said legal weed may actually give police officers more opportunity to stop-and-frisk.

“I think cops could still cite it as probable cause to stop if it is technically illegal to do it in public, but how much they will actually do that or whether it will increase or decrease remains to be seen once the law goes into effect,” Casey said in an email to L.A. Weekly.

Although it’s now legal to possess a limited amount of marijuana and, starting in January, it’ll be legal to sell it, under California law it’s still a crime to consume weed in public, at a bar or within 1,000 feet of a school or daycare center when children are there. There will be more people with access to the product, which means potentially more people choosing to smoke in public and thus more opportunities for cops to cite the odor as a reason to stop them, Casey theorizes.

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However, thanks to considerable innovations and improvements in the way cannabis is consumed, ingesting the drug has becoming increasingly incognito. For example, if you’re eating a weed brownie on the street and it’s absent the telltale smell, cops can not assume it’s an edible and use it as probable cause without further investigation, Casey said.

Much like alcohol — which is legal to consume but illegal to drive under the influence of — it’s against the law to drive stoned, and police can use that as a reason to pull you over, Casey said. With the legalization of recreational use, there may even be “increased attention” from law enforcement, he said, which could lead to an uptick in the number of officers claiming to have smelled marijuana coming from a car and using that as a reason to stop the driver.

Once a cop pulls someone over with probable cause, he's able to search anything in plain view inside the vehicle. If police are taking someone into custody, they can then also search the “grab area” of the car — that’s the visible interior such as the seats or personal items on them, Casey said. Cops are not allowed to search a car’s trunk without the driver’s consent.

“Even though it [marijuana] is legal in California and the Sheriff’s Department and the police officers, highway patrol, they’re tasked with enforcing primarily state law ... it’s technically, federally illegal,” Casey said.

This means no wiggle room for smokers at ports, federal buildings, facilities that deal with immigration and any other locations under the purview of national agencies. Airports are some of the most dangerous locations for weed users, Casey said, so in Colorado, the airport is surrounded by signs that remind visitors to ditch their dank before hopping on a plane.

“Just outside the airport it may be legal in the state, [but] once you go in the airport and you have it, big problem,” Casey said.

It's illegal to smoke weed in public, at bars or within 1,000 feet of a school or daycare center.
It's illegal to smoke weed in public, at bars or within 1,000 feet of a school or daycare center.
Brian Feinzimer

Since recreational marijuana legalization is unprecedented in the state’s history, it will take some time for case law to accumulate and determine the boundaries of the law, Casey said. Since this legal future is hazy at best, we’ve included a refresher on your fundamental rights against “unreasonable search and seizure,” courtesy of Ian Kysel, staff attorney at the ACLU of Southern California.

Assert your rights without being too assertive: Remember that anything you do or say can be held against you, so act appropriately. Never physically touch a police officer, keep your hands where they can see them, be cognizant of the words you choose and be aware of your body language. Don’t run from officers even if you think they’re doing something unlawfully.

Just say “no” to searches: Law enforcement has to have legal justification to search you or your property without your consent, so if they ask to search you, do not consent. If they do it anyway, repeat that you do not consent but don’t try to physically pull away. Unless officers place you under arrest, they can’t hold you against your will, so ask officers if you’re free to leave. If they don’t respond, keep asking.

If arrested, ask for an attorney and then be quiet: Police are permitted to lie in certain circumstances when investigating a crime, Kysel said, so don’t respond to even seemingly innocuous questions. Ask for a lawyer and don’t blast out any information about your arrest on social media or via email.

The ACLU has launched the app “Mobile Justice CA,” which allows users to upload videos of suspected police misconduct, report illegal incidents and access an on-demand “Know Your Rights” guide, should you need it.

If all else fails, remember these four key phrases, Kysel advised:

“Am I free to leave?”
“I do not consent to searches.”
“I want an attorney.”
“I’m invoking my right to remain silent.”


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