Smell of marijuana still enough for Vermont vehicle search

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.

 

 

Will marijuana legalization change Vermont DUI laws?

By most accounts, marijuana legalization is now considered a foregone conclusion in the State of Vermont. According to a recent Castleton State College Poll, 56 percent of Vermont adults now support legalization. Further confidence in legalization has been voiced by the Governor Peter Schumlin, Speaker of the House, Shap Smith, and Attorney General, William Sorrell.

With momentum growing, the State elected to commission the Rand Corporation, to conduct a financial analysis of the cost benefits of marijuana legalization to the State of Vermont.

In its recently released report, it was disclosed by Rand that Vermont could generate up to $75 million in tax revenue per year. This figure certainly rings bells in the minds of legislators, as they faced a $113 million budget shortfall by the end of 2014.

With the potential benefits in mind, it should come as no surprise that Jeannette White, D-Windham County and Joe Benning R-Caledonia County, introduced a 41-page bill in December proposing legalization of the possession of up to one ounce for recreational use and cultivation of that totaled 100 square foot or less.   White has long supported legalization, as she led the effort to approve Act 76, which decriminalized possession of small amounts of marijuana in 2013.

Despite the optimism of passing a legalization bill in 2016, there remain some headwinds for legalization the strongest of all being the interpretation and enforcement of DUI laws when it comes to Driving while under the influence of marijuana or Driving While High (DWH). If this delay lasts too long, the bill’s approval may outlast Schumlin’s 3rd and final term, causing the bill to be placed on the desk of an unknown governor.

Currently, Vermont law does not give much clarity on the subject of DWH, merely stating that someone is under the influence of marijuana or other drugs if the impairment, is “noticeably and appreciably” affecting a person’s ability to drive a vehicle safely.

“Noticeably and appreciably” certain appear to lend themselves subjective observations that allow for significant discretion by individual law enforcement officers.  However, convictions for DWH have posed significant challenges for prosecutors to scientifically prove that the motorist was influenced by marijuana at the time of the stop due to the lack of a numeric standard for impairment that could be relied upon similar to the current .08 law for alcohol.

Now, with legalization on the negotiating table, reports have surfaced that lawmakers are considering amending Vermont DUI laws to allow for the admission of saliva tests, which could be conducted roadside. These tests are alleged to be able to detect recently ingested marijuana and provide a reading that could give prosecutors further tools to prove DWH charges.

In a 2013 report from the Drugged Driving Coalition, Greg Nagurney, the appointed representative of the State’s Attorneys and Sheriffs, stated that a majority of county prosecutors and sheriffs supported an amendment to DUI laws to allow prosecutors to charge motorists with DWH if impairment could be detected “to the slightest degree” (23 VSA 1201(a)(2). If this low standard of proof is approved as part of the legalization bill, it may be difficult for any motorist who has consumed marijuana in the last 30 days to immediately refute law enforcement suspicions of DWH. If these suspicions are supported by other evidence such as smell, bloodshot eyes or confusion, a probable cause arrest could very well ensue even in cases when the high from smoking marijuana has long subsided.

 

 

 

Smell of marijuana may not be enough for search of vehicle in Vermont

With the passage of Act 76 in the State of Vermont, decriminalizing possession of under 1 ounce of marijuana, questions have been raised as to whether or not the discovery of such an amount can still give a basis for law enforcement to search a motor vehicle.  Without owner consent, Vermont law enforcement need to meet a probable cause of criminal wrongdoing in order to receive approval from a judge for a search warrant.  Thus, given that possession of small amounts of marijuana is now considered a civil infraction, similar to a speeding ticket, challenges are beginning to surface in Vermont and surrounding states as to the lawfulness of warrants issued on a violation of ACT 76 alone.

Although the law is clear that for civil violations, officers may not detain motorists for a time that would exceed the normal time for issuing a traffic ticket, law enforcement continues to challenge this rule by attempting to expand the scope of their investigation when they claim to smell a strong odor of burnt marijuana.  However, some recent cases against search and seizure have arisen recently in Massachusetts, one most notably in      COMMONWEALTH vs. MATTHEW W. OVERMYER, which states “In sum, we are not confident, at least on this record, that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine. In the absence of reliability, a neutral magistrate would not issue a search warrant, and therefore a warrantless search is not justified based solely on the smell of marijuana, whether burnt or unburnt.”

Thus, with the increasing number of drugged driving arrests occurring on Vermont roads, and the legalization of marijuana possession in the forefront of the Vermont legislature, it is reasonable to conclude that a substantial amount of grey area continues to exist in prosecuting such cases that can only be clarified through litigation in the Vermont County court system.