It smells like victory and this is why.
Those who have approached the cannabis plant over the years from criminal defense/social justice points of view will know that the “smell of marijuana” has justified an extraordinary number of stops, arrests, searches, and seizures. It has been the fundamental tool in the arbitrarily capricious and irrational enforcement of the drug laws. The federal and state hemp farming acts and concurrent amendments to the federal and states controlled substances act obliviate this justification.
“Plain smell” jurisprudence goes something like this: The 4th Amendment allows for search and seizure of a citizen when there is probable cause to believe that a crime has been committed or evidence of a crime will be found in the place to be searched. Marijuana is a schedule 1 controlled substance and therefore it is “contraband per se,” like plutonium and bald eagles. Its mere presence indicates a crime has been or is being committed. Therefore its smell justifies stop, search, seizure, arrest, and of course forfeiture.
Over the last few years as states have moved to allow both medical and adult use of cannabis, the various courts have wrestled with how to deal with the smell of marijuana to justify – let’s be frank – raiding citizens. Some of the better-reasoned decisions have held because certain quantities and uses of marijuana are allowed in the state, more than mere odor is required to establish probable cause. Some courts have looked at the old fallback “totality of the circumstances” test. Some have based their decisions on whether the state law establishes marijuana possession as a constitutional right, an immunity, or an affirmative defense. Fine. However, the exclusion of hemp from the definition of marijuana trumps (sorry) all of this.
In short, the hemp farming act and state laws that model it have removed the plant itself from the controlled substances act. The plant itself is now defined as hemp and is exempted from the definition of marijuana. Only those parts of the plant that exceed .3% THC is controlled as marijuana. Here’s the kicker: THC is odorless. No one, human or dog, can smell marijuana under the new law, much less determine THC percentages. The “smell of marijuana” is no more. It is now the smell of hemp and it no longer supports reasonable suspicion to stop nor probable cause to search and seize.
The hemp farming acts do not legalize marijuana. However, they do make unconstitutional any stops, searches, seizures, arrests, and forfeitures based on a smell that no longer exists.
