A California appellate court ruled that police cannot justify the search of a vehicle based on odor alone. It is among the first appellate court rulings in relation to California’ Proposition 64, which was approved by voters in November 2016.
On one fateful night in September 2017, police were on a “specialized DUI patrol” on University Avenue in Berkeley, California. The San Francisco Chronicle reports that police saw a car drive past them without a front license plate, and pursued the vehicle. When the police turned on their lights and siren, the driver immediately pulled over to the curb and was cooperative.
Despite the original intention of police, when they smelled cannabis in the car, they searched the vehicle. But the court determined that cannabis odor does not amount to probable cause.
“Marijuana and alcohol now receive similar treatment under the law,” the Appellate Division of Alameda County Superior Court said in the ruling. The decision specifically bars evidence of a loaded handgun that police found during the search in the 2017 Berkeley incident. While the ruling was issued in December, it was published by the state courts in early March, therefore setting a precedent for similar cases in the future.
California is not alone in the changes in police protocol. Last August, Pennsylvania Judge Maria Dantos issued a similar ruling that state troopers weren’t authorized to search a vehicle based on cannabis odor. The Vermont Supreme Court came to the same conclusion in January 2019. In Grand Junction, Colorado, a three-judge panel in a Colorado Court of Appeals ruled against the right to search based on cannabis odor in 2017.
The pattern that we’re seeing is that if police don’t have probable cause to justify a vehicle search that will stand up in court, cannabis-related cases could easily fall apart. It’s happening in states with legal cannabis everywhere.