An officer needs probable cause in order to be to search a vehicle without the owner’s consent. Despite Vermont decriminalizing the possession of under an ounce of marijuana in 2013, the smell of marijuana alone still grants law enforcement the probable cause they need to request a search. This reality was recently reinforced in Judge Helen’s Toor’s district court decision denying a Rutland man’s motion to suppress the evidence seized as a result of the search. “Vermont’s decriminalization statute explicitly states that it leaves unchanged marijuana’s ability to furnish probable cause. The national consensus is that the mere smell of marijuana supports probable cause.” Although still currently good law in Vermont, Toor’s decision has since been appealed to the Vermont Supreme Court.
Further clarification as to the sniff test may be supported by recent decisions in Massachusetts and Colorado, that have found that the oder of marijuana alone does not give an officer probable cause. The Massachusetts case is especially important to Vermont as at the time of the decision, possession of one ounce or less of marijuana was considered a civil infraction in Massachusetts as it is considered in Vermont. “[W]e no longer consider the “strong” or “very strong” smell of unburnt marijuana to provide probable cause to believe that a criminal amount of the drug is present. Commonwealth v. Rodriguez.
The wild card in the entire calculus is the fact that it is all but assured that Vermont will legalize recreational marijuana use in the near future. In 2017, a legalization bill made it all the way to Governor Phil Scott’s desk before he vetoed it, stating that further study was needed before he signed the bill into law. Thus, if legalization does occur, the Vermont courts may look more towards the recent decisions in Colorado to guide them in reviewing the smell test as a sole basis for a search. “Because Amendment 64 legalized possession for personal use of one ounce or less of marijuana by persons 21 years of age or older in Colorado, it is no longer accurate to say, at least as a matter of state law, that an alert by a dog which can detect marijuana — but not specific amounts — can reveal only the presence of ‘contraband,’”. Colorado v. McKnight
If Vermont does pass a marijuana legalization bill, expect further challenges to law enforcement’s ability to decipher criminal behavior from that of legal, including, but not limited to their ability to tell the difference between a legal amount of marijuana and that which surpasses the criminal threshold.