Everyone likes an easy day at the office. Cops are no exception. They like easy excuses to disregard the Fourth Amendment. Pretextual stops are how cop business has been done for years. Any missing tail light or (subjectively) too dark window tint is enough to initiate a traffic stop and apply pressure on drivers to submit to a so-called “consensual” search of their car.
Traffic enforcement is never consistent. It’s always opportunistic. And one of the favorite ploys of cops is to assert they “smelled” marijuana. Admittedly, it’s the controlled substance with the most recognizable odor. The problem is that there’s almost no way of disproving a cop’s olfactory testimony in court, so challenges to unconstitutional searches tend to fall flat in court when cops are granted deference and alleged weed smokers are given The Shaft.
While cops continue to rely on the alleged odor of marijuana to bypass the Supreme Court’s Rodriguez decision along with what’s left of the Fourth Amendment, more and more states are declaring weed legal, complicating a matter already complicated by law enforcement’s disingenuous assertions and opportunistic violations of constitutional rights.
The problem is that when you go up against cops, you not only go up against their incredibly powerful unions, but years of case law granting qualified immunity to officers who obviously acted in bad faith. And when states alter laws, cops start crying for their dogs, claiming the only option for their favorite partners — “four-legged probable cause” — is a bullet to the head.
While cops may love their dogs (and actively-to-the-point-of-killing them hate your dogs), they love their constitutional violations even more. Marijuana legalization makes excusing warrantless searches much more difficult. So, when push came to legislative shove, the state’s cops simply pretended they couldn’t comprehend the new legalization laws.
That’s the depressing upshot of this report by Jacob Sullum for Reason. The Maryland state legislature legalized recreation marijuana. But despite being told twice, Maryland cops are still pretending they can’t comprehend any law that restricts them from treating the odor of marijuana as anything other than a reason to engage in warrantless search.
As of July 1, thanks to a ballot initiative that Maryland voters overwhelmingly approved last November, state law will allow adults 21 or older to publicly possess up to 1.5 ounces of marijuana. In anticipation of that development, Maryland legislators last month passed H.B. 1071, which will bar police, also effective July 1, from treating the smell of cannabis as sufficient grounds for stopping or searching pedestrians or cars.
The state legislature recognized it needed to go further than simply legalizing marijuana to prevent cops from treating marijuana as illegal. Those of us who have neither badges nor power will immediately understand the law. But that’s why we don’t have badges or power. We’re the chumps (and chumpettes) expected to oblige officers who willingly misunderstand laws when hassling residents. The cops get to decide how the law is interpreted. Even if the cops are wrong, they’re only held to the “village idiot” standard of law interpretation established by the Supreme Court via multiple bad rulings.
At least, the state of Maryland had the foresight to interpret the law for cops who would certainly (and deliberately) get it wrong. And now the state’s cops — represented by their unions — are arguing the law goes too far.
H.B. 1071 clarifies this confusing situation in light of legalization: It says the smell of marijuana is not enough, by itself, to justify a warrantless search or a stop. Although the logic of that reform seems clear, the bill’s opponents argued that such a categorical rule goes too far. Cops wanted to continue stopping and searching people for marijuana even after they are legally allowed to possess it.
The Maryland Chiefs of Police Association and the Maryland Sheriffs’ Association noted that some marijuana-related conduct will remain illegal in Maryland, including possession by people younger than 21, possession of more than 1.5 ounces, driving under the influence, and unlicensed distribution. Since the smell of pot still could be evidence of a crime, they said, “using odor of cannabis alone as grounds to briefly detain a person or to search a vehicle will not violate the Fourth Amendment and would be reasonable.“
Sure, we still want cops to keep a tab on drivers that might be under the influence of legal drugs. But very few drunk driving arrests result in officers engaging in extensive searches of vehicles, much less suggesting any cash the drunk driver might be carrying on them is the proceeds of illegal activity. Cops want to treat another legal intoxicant like a DEA-scheduled drug, despite clear legislative intent stating the opposite. If cops could be trusted to treat alcohol and marijuana impairment equitably, the state wouldn’t have needed to reiterate itself legislatively. But everyone knows cops treat these differently, even if laws now make marijuana as legal as alcohol.
In short, the cops can’t be trusted. Hence the repetition. And, just as importantly, the state’s clear declaration of its intent in passing these laws makes it that much more difficult for courts to claim (in support of abusive cop behavior) no one knew what the legislature actually meant when it crafted these laws.
Rather than wait to see where the Maryland Supreme Court might come down on these questions, state legislators made a policy choice that obviates the need for further litigation and adjudication. And in making that choice, they eliminated one of the many excuses that police use to hassle people who pose no threat to public safety.
The government demands that we, the taxpayers, abide by all laws. Asking cops to do the same thing shouldn’t be considered something worth challenging by cops and their union reps. They’re in the business of law enforcement. The very least they should be expected to do is respect the laws, even if they don’t agree with them.
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