Tulsa World reports
An appellate court’s opinion that the odor of cannabis establishes probable cause for criminal activity has some, including at least one state lawmaker, concerned about law enforcement going forward.
Rep. Scott Fetgatter, R-Okmulgee, said the ruling related to a 2019 Tulsa County traffic stop “goes to show Oklahoma still has a long way to go in working on regulations for the legal medical marijuana industry.”
The Oklahoma Court of Criminal Appeals last week reversed a decision made in the case of Brandon James Roberson, who was arrested after police found evidence in his SUV that supported a warrant to search the motel room he used. He was charged with trafficking after quantities of multiple drugs were found in the room.
A district court judge agreed with Roberson’s defense that his disclosure to officers about having “possibly half a joint” was not enough probable cause of illegal activity, considering Oklahoma has licensed nearly 400,000 medical marijuana patients.
Overturning that logic in a unanimous ruling, the appellate court determined Oklahoma’s legal medical cannabis program “in no way affects a police officer’s formation of probable cause based upon the presence or odor of marijuana.”
Fetgatter said he’s concerned for patients with that phrasing appearing in case law.
“When 10% of your population has a medical marijuana card, we know that a lot of cars are going to have the smell of at least unburned marijuana,” he said Friday.
Elected in 2016, Fetgatter has been trying to update laws that address driving under the influence of drugs. As of now the presence of any Schedule I substance or its metabolites in blood or bodily fluid can, according to state law, be proof that a person is in the commission of DUI. That includes THC, which can stay in the system weeks after use.
“Even though the law is changed, you still have a cultural aspect that has to be overcome,” Fetgatter said. “And the unfortunate problem we have with our medical program is people are still doing things illegally, and until that stops and people can see the value in having the program — a medical program — it’s going to just take some time.”
