Court rules cannabis odor establishes probable cause
An appellate court recently overturned a ruling that the presence of marijuana odor wasn’t enough to establish probable cause, potentially exposing patients to search.
There are nearly 400,000 medical marijuana patients in Oklahoma who daily or weekly drive from a dispensary to their home, or place to place with medicine they are legally able to possess. Until last month those patients were perceived mostly protected from the determination of probable cause of criminal activity due to the presence of cannabis or cannabis odor. Now, they’re not so sure — after an Oklahoma Court of Criminal Appeals ruled last month that “the decriminalization of marijuana possession for those holding medical marijuana licenses in no way affects a police officer's formation of probable cause based upon the presence or odor of marijuana.”
The appellate court’s decision to overturn a previous ruling that the presence of cannabis odor was not enough to establish probable cause was based upon several nuances specific to the case of appellee Brandon James Roberson. Sparing other qualifying details, ultimately Mr. Roberson’s disclosure that there was marijuana in his vehicle gave the officer’s probable cause to search it.
Being able to produce a valid Oklahoma medical marijuana card “may constitute an affirmative defense to the crime,” but the ruling’s language leaves license holders vulnerable to search regardless their status and highlights the remaining stigma that plagues patients with projections or assumptions of criminal activity.
The unfortunate reality about traffic stops is with them comes varying degrees of privilege in how they can be handled. The ruling mentions how a “totality of all the circumstances” plays into an officer’s formation of probable cause. Oklahoma’s medical cannabis patients may or may not have criminal history; they may or may not have tattoos; they may live or be pulled over in an area with considerable or “high crime;” and when reasonable suspicion trumps the sovereignty and rights of a person in legal possession of marijuana we have a real conflict between the law and enforcement of the law.
If you are a patient, transporter agent or otherwise licensed to posses or transport medical marijuana in the state of Oklahoma, do your due diligence to keep this problem from becoming a personal one. Know your possession limitations, carry your medical marijuana license everywhere you carry cannabis, put your product in the trunk to avoid the raw odor in your car/cab, obey traffic laws and do not feel the need to disclose anything about your day or details of what is in your vehicle. If you are continuously prompted otherwise, ask to contact your attorney.
The road to liberating the cannabis plant and those who use it has long been a bumpy one, but we’re buckled up and along for the ride. Gies Law Firm can help you from every angle of this legal intersection, from obtaining the appropriate license to possess and transport cannabis to representing you in the case of wrongful search and seizure or any other infringement upon your rights as a licensee. Until further protections are inevitably provided, stay safe out there. Contact us if you find yourself in a jam.
