When police say they smell pot, they can search you. Lawmakers worry decriminalization won’t change that.

By: - January 24, 2020 9:37 am

A police car in Richmond, Va. Police currently provide the vast majority of transports to psychiatric hospitals across Virginia. (Ned Oliver/Virginia Mercury)

If police pull you over in Virginia and say they smell marijuana, they have probable cause to search your car without a warrant.

Some state senators, skeptical of what they view as an improbably high number of searches justified under such pretenses, want to make sure the practice ends under marijuana decriminalization legislation expected to pass this year.

“The ruse – well, that’s the wrong word – simply saying I smell marijuana gives them justification to search the entire car,” said Sen. Joe Morrissey, D-Richmond, a former criminal defense lawyer, who posited that nine times out of 10 police find nothing but the practice has been allowed to stand because only successful searches wind up before judges.

Morrissey is not alone in questioning police officers’ olfactory senses. The issue has been a long-running complaint among public defenders and defense lawyers both in Virginia and around the country. Last year, a New York judge grew so fed up with hearing the justification in court that she openly accused police of lying, writing in an opinion that “the time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop.”

Steve Benjamin, the special counsel to the Senate Judiciary Committee and a high-profile Richmond defense attorney, told senators hashing out the issue Thursday that he noticed a sudden spike in smell-of-marijuana searches 10 years ago.

“It seems only in the past decade, has virtually every traffic stop – and I get these calls every day – been accompanied by the odor of marijuana,” he said. “It’s as if it were taught in a national police academy as an effective means of being able to search a vehicle.”

There was bi-partisan agreement among members of the criminal law subcommittee working on the legislation that the issue should be addressed. But a long (and yet unresolved) debate about how precisely to write a fix into the code made clear it will be easier said than done. That’s because under the approach to decriminalization Democrats in the Senate and House of Delegates are pursuing, possession of an ounce or less of marijuana will technically remain a crime even as the penalty will be reduced from a Class 1 misdemeanor punishable by up to a year in jail to a $50 fine.

Benjamin rattled through a range of other unanticipated legal consequences that will remain until the drug is actually legalized, noting a citation could still mean someone is deported, ineligible to live in public housing or have their home declared a public nuisance.

“I understand the reasons for decriminalization versus legalization, but in making these policy decisions, this half step has the misfortune of misleading the public into thinking there are no consequences, when there are going to be many potential consequences.”

Some lawmakers shared that concern. “We are creating a false promise,” said Sen. Richard Stuart, R-Stafford. “We’re telling people we decriminalized it. And we really haven’t.”

Advocacy groups, including the ACLU of Virginia, have been urging full legalization, arguing that maintaining a penalty – even a drastically reduced one – will continue to disproportionately harm minority communities, who face the vast majority of enforcement.

One advocate, Rebecca Keel, told lawmakers that she’d rather maintain the status quo than see the state adopt the legislation currently under consideration. Likewise, Sheila Bynum-Coleman, who unsuccessfully ran for the House of Delegates last year, urged lawmakers not to settle for a half measure.

“Who do you think are going to be the ones having to pay that civil penalty? Who do you think are the ones that are going to be pulled over and have police say ‘We smell marijuana,’” the former Democratic candidate said. “It’s going to be black and brown people. It’s not going to be most of the people in this room’s children. It’s going to be people that look like me.

“Democrats are in control and we’re going to move slowly, but how slow are we going to move when we’re talking about people’s lives.”

Democratic leaders don’t believe they have the support to pass legalization this year. Gov. Ralph Northam, for one, has said he doesn’t believe the state is ready for such a step.

Sen. Adam Ebbin, D-Alexandria and the lead patron of the legislation in the Senate, posited that at least the consequences – and thus the impact of the racial disparity — would be lessened in the short term.

Other advocates, including Virginia NORML, back the incremental approach.

Searches based on marijuana smells are one of a handful of issues lawmakers are working on as they fine-tune the legislation. They’ve also discussed how juveniles should be punished and how to define impaired driving.

On Thursday, they opted to advance the bill for a vote before the full Judiciary Committee without clear fixes, reasoning that the final text won’t be resolved until it comes time to reconcile the House and Senate versions in a conference committee.

“We do not have a perfect bill here yet, but we are moving the ball forward,” Morrissey said.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Ned Oliver
Ned Oliver

Ned, a Lexington native, has been a fulltime journalist since 2008, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. He was named Virginia's outstanding journalist for 2020 by the Virginia Press Association.