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.

Frisbee golf is not a reason to let a police officer search your vehicle

Unless a motorist gives a police officer consent to search their motor vehicle, the officer must first have probable cause to apply for and receive a warrant from a Vermont judge prior to entering a vehicle.

Vermont law enforcement officers have been trained in all sorts of techniques to gain consent from motorists.  In many cases, officers will use the, “give consent or I will have your vehicle towed” tactic, which can scare a motorist into thinking they truly have no other choice but to allow a search.

However, a recent report by CNET showed that an Iowa officer may have tried to go a little too far off the cuff  when he tried to gather consent from a motorist to search his vehicle for marijuana because the driver played frisbee golf.

The entire interaction was recorded, where the officer attempted several times to get the driver to consent to a search because in his opinion, all frisbee golfers apparently smoke weed.

The motorist was not buying into the officer’s assumptions however and, after several attempts to gain access to the vehicle, the officer let the motorist go with a warning for failing to turn on his headlights.

This tactic has raised some serious concerns as to just what strategies officers are using to gain access to people’s vehicles.  If frisbee golf is such a tactic, I don’t want to know what a Grateful Dead CD will bring.