What if police say they smell marijuana?

If police say they smell marijuana (aka cannabis) coming from your vehicle, you’re in a tough situation. Courts have ruled that the odor of contraband gives officers probable cause to perform a search. For this reason, police are quick to claim that they smell something and sometimes they might even lie about it.

All you can really do is say, “Officer, I have nothing to hide, but I don’t consent to any searches.” Establishing that you do not consent will potentially allow an attorney to file a suppression motion if no marijuana was found. If they search you anyway and something is found, you’ll need an attorney to help you fight the charges. Unfortunately, police sometimes use tricks like this to circumvent your constitutional rights and there’s no perfect way to handle the situation. Of course, they are most likely to do this if they are suspicious of you for some reason, so do your best to stay calm. 

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In many cases, the officer will mention marijuana just to see how you react. If you appear nervous, the officer’s suspicions will escalate. Police often think they can tell by looking at you whether you’re a “pothead,” so be extra careful if there’s anything about your appearance that might draw their attention. How you dress and what kind of vehicle you drive is a personal choice, but police definitely look out for certain “stoner” stereotypes. If your look makes you stick out, you should think carefully about what items to keep in the car with you.

Finally, never smoke marijuana in or around your car. People who’ve been arrested, and smoking marijuana in public places like vehicles is the #1 cause of avoidable arrests.

Above reprinted with permission under license with permission from – Flex Your Rights – some edits made.


Marijuana Law in Missouri

In May 2014, Senate Bill 491 was enacted which reduced penalties for certain cannabis offenses. In particular, it eliminated the threat of jail time for first-time possession of up to 10 grams. The bill also reduced penalties related to the sale and cultivation of cannabis and eliminated the ban on probation or parole for third-time drug felony convictions. It passed the Senate by a 29–2 vote and the House by a 140–15 vote, then became law without receiving the signature of Gov. Jay Nixon. SB 491 did not take effect until January 2017.

Although penalties for cannabis were reduced under SB 491, possession of small amounts is still treated as a misdemeanor crime. For this reason, the National Organization for the Reform of Marijuana Laws considers Missouri to only have partially decriminalized cannabis. In November 2018, Missouri residents approved with 66% of the vote a ballot measure (Amendment 2) to legalize the medical use of cannabis. The measure allowed qualified patients to grow up to six cannabis plants and purchase an amount of cannabis per month to be determined by state regulators (required to be at least 4 ounces). The measure set a 4% tax rate on medical cannabis sales with proceeds to be earmarked for services for military veterans. Although some qualifying conditions are specified, the law additionally allows cannabis to be recommended for any "chronic, debilitating or other medical condition" as determined by a physician, along with any terminal illness.

St. Louis

In April 2013, the St. Louis Board of Aldermen voted 22–3 to allow police to cite individuals instead of arresting them for small amounts of cannabis. Cited persons would be processed in municipal court (instead of state court) and subject to a fine in the range of 100 to 500 dollars. The law went into effect in June 2013. The St. Louis Board of Alderman voted unanimously on a bill to reduce the fine for possession of small amounts of marijuana to $25, which was signed into law by the mayor on February 2, 2018, which became effective immediately.

In June 2018, St. Louis Circuit Attorney, Kimberly Gardner, announced her office would not prosecute marijuana possession under 100 grams. Gardner's office prosecutes at the state level in circuit court. However, the St. Louis Counselor's office has made no such claim, therefore citations for municipal marijuana can still be issued. Even though the fine is only $25, marijuana convictions will still show up on criminal background checks.

St. Louis County prosecutor Wesley Bell has also announced his office will not prosecute marijuana possession under 100 grams. 

Kansas City

In April 2017, Kansas City residents approved with 75% of the vote a ballot measure to decriminalize up to 35 grams of cannabis. The measure eliminated the threat of jail time and reduced the penalty to a $25 fine.

Columbia

In November 2004, a ballot measure to decriminalize cannabis in Columbia passed with 61% of the vote. The measure stipulated that possession of up to 35 grams was to be processed in municipal court as a non-criminal offense, punishable by a maximum fine of $250. 

Springfield

In August 2012, the city council of Springfield voted 6–3 to enact (rather than let go to ballot) a citizen-led petition to decriminalize small amounts of cannabis. It was then repealed one month later, however, in effect blocking the proposal (which had obtained the requisite number of signatures) from appearing on the ballot. Since city council did not have this explicit power, organizers of the petition denounced the council's actions which they deemed to be illegal. A lawsuit was filed in federal court, and in April 2015 the city settled with the petition originators in the amount of $225,000.


Federal Law

The use, sale, and possession of cannabis in the United States is illegal under federal law.  The federal  Controlled Substances Act of 1970, which combined all prior existing federal drug laws into one single statute, classified marijuana as a Schedule 1 drug. The Supremacy Clause of the United States Constitution dictates that federal law preempts conflicting state and local laws. So even though some states have declared marijuana legal, it remains illegal under federal law.

Under federal law, no one can use marijuana and legally possess a firearm, see Wilson v. Lynch. There's no federal exception for state governments that allow medical marijuana. Penalties under federal law for possessing even small amounts of marijuana include:

  • For a first offense: misdemeanor, up to a year of jail time and up to $1,000 in fines;
  • For a second offense: misdemeanor, up to 2 years of jail time (with a mandatory minimum of 15 days) and up to $2,500 in fines; and
  • Third offense or more: misdemeanor or felony, up to 3 years of jail time (with a mandatory minimum of 90 days) and up to $5,000 in fines.

The penalties for selling and cultivating marijuana are:

  • Less than 50 plants (cultivating) or 50 kg (selling): felony, up to five years of jail time and up to $250,000 in fines;
  • 50-99 plants or kilograms: felony, up to 20 years of jail time and up to $1,000,000 in fines;
  • 100-999 plants or kilograms: felony, 5-40 years of jail time and up to $500,000 in fines; and
  • 1,000 or more plants or kilograms: felony, 10 years to life in jail and up to $1,000,000 in fines.

Sales to a minor or within 1,000 feet of a school, youth center, or other protected areas will be given doubled penalties. 

On January 4, 2018, Attorney General Jeff Sessions issued a memorandum immediately rescinding the Obama  Administration’s long-standing guidance limiting federal enforcement of medical marijuana. The memorandum placed physicians and patients at risk of arrest and prosecution in 29 states and the District of Columbia that had legalized medical marijuana. 

As of 2019, ten states, two U.S. territories, and the District of Columbia have legalized recreational use of cannabis. Thirty-three states, four U.S. territories, and D.C. have legalized medical use of the drug. Multiple efforts to reschedule cannabis under the Controlled Substances Act have failed, and the United States Supreme Court has ruled in United States v. Oakland Cannabis Buyers' Cooperative (2001) and Gonzales v. Raich (2005) that the federal government has a right to regulate and criminalize cannabis, whether medical or recreational. 

For additional information, see: "Enforcing Federal Drug Laws in States Where Medical Marijuana Is Lawful".

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