What Are My Rights When Marijuana is Legal?

With the passage of the nation’s first marijuana legalization measures in Colorado and Washington, we’re getting a lot of inquiries about how these changes in marijuana policy might impact basic rights during police encounters. Good question…

Anyone who’s been checking out our materials over the years knows how often the subject of marijuana comes up. It’s one of the main reasons people are being stopped and searched by police. A lot of people are going to jail for it and even more are being searched head-to-toe (or worse) by suspicious officers only to be turned loose when nothing is found.

Let’s face it, the stuff stinks (if it’s good at least), and the law gives police a lot of leeway to start searching when they see or smell something illegal. Even the most remote odor of marijuana becomes probable cause when it enters a cop’s nostrils, and numerous know-your-rights strategies you’ve learned here become a lot more limited if that happens.

But what if the thing they smell isn’t illegal anymore? The officer can’t base a claim of suspected criminal activity on the observation of something that actually isn’t a crime. As long as any amount of marijuana is permitted to be possessed, it is no longer “probable” that the odor thereof is indicative of an illegal act. Sure, there are limits to the amount one may possess, but the officer’s nose lacks the precision of a digital scale. That distinction matters in a court of law.

So often in the history of 4th Amendment jurisprudence, the parameters of permissible police practices have been determined and defended in a context of unambiguous illegality. Police have significant power to take action against anyone engaged in illegal acts, but their authority in the absence of clear evidence is diminished considerably. As such, the legalization of marijuana will very likely be held by the courts to limit not only the ability of officers to arrest people for pot, but also the ability to look for it in the first place. That’s exciting news for all the non-pot-smoking people out there who are sick of being searched for pot.

As for those who do enjoy a little cannabis from time to time, our advice is to know the law cold before taking your newfound freedom to the streets. For starters, you should know that you still aren’t allowed to smoke pot in public, so keep it off the sidewalk and out of the car. A lot of people who don’t actually like the stuff just voted to make it legal for you, so try not to piss them off by skunking up your surroundings.

Finally, keep in mind that legalization might give police less authority to search you in some situations, but it won’t stop them from asking what you’ve got in your bag. Ironically, your right to refuse searches becomes even more important in situations where police can no longer rely on probable cause to make their case. After all, the list of random things you can get arrested for is still longer than you can count, even if there’s one less item on it.