"I Smell Marijuana": How Virginia Gave Cops License to Harass

“I smell marijuana.”

Three magic words with the power to make constitutional rights disappear.

Merely uttering those three magic words gives any police officer in Virginia the power to search your house, your car, your briefcase, your pockets, or even your body, without a warrant or your consent. What is it that gives these three magic words their incredible power?

The Fourth Amendment to the United States Constitution says:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Basically, the police can’t stop you or search your stuff without a warrant unless the stop or search is “reasonable.” But who decides what is reasonable? The courts do, but they don’t do so until long after any search and arrest have already occurred. Judges decide whether warrantless stops or searches by police are unreasonable, and they can exclude the evidence uncovered during unreasonable incursions.  

When it comes to the smell of marijuana in Virginia, judges at all levels have consistently held that police need only utter those three magic words – “I smell marijuana” – in order to gain access to someone’s person, house, papers, or effects. Although Virginia passed a bill to “decriminalize” marijuana, which went into effect July 1, 2020, the legislature did nothing to curb the power of police to search people based on those three magic words. Even though simple possession of marijuana is now punishable only by a civil penalty, the police can still use the claim that the odor is in your car to conduct a criminal investigation.

The power to search someone’s person, their car, their home, or their belongings is a serious invasion of privacy. At this nation’s founding, we considered these intrusions so fundamental that they were barred unless those conducting the search had obtained a judge’s permission first. The need for those protections have not faded over the centuries.

Most Americans cannot understand how it feels to have an armed police officer force you out of your car and make you sit handcuffed on a curb for hours while police search your car. They don’t know what it’s like to have people stare at you as they drive by. Or to have strangers go through the drawers of your dresser, your nightstand, your medicine cabinets. These invasions are unimaginable for most of us. But for some, they are commonplace. For some, they are yet another marker of the fact that they do not matter. These experiences are a reminder that they are suspects, not members of a free society. A division of our Commonwealth into two groups, one worthy of dignity and respect and another unworthy, is reprehensible. But when those groups are divided by the color of their skin, it is racism in its simplest form. But for millions of Americans, and for hundreds of thousands of Virginians, this is the reality of how the police choose to enforce the law.

One would hope that police would wield such an awesome power responsibly, but unfortunately, it is routinely overused and abused. And the odor of marijuana appears to be the most common vehicle for the police to selectively violate the Fourth Amendment rights of Black people in Virginia.

When we reached out to defense attorneys across the Commonwealth for comments and anecdotes on pretextual policing, by far the most common subject of complaints was stops and searches based on the alleged smell of marijuana. Police in Virginia are very good at smelling marijuana, particularly around Black and Brown people. Unfortunately, it is nearly impossible to disprove an officer’s assertion that they “detected a distinct odor of marijuana.” One officer testified that he detected the odor of raw marijuana coming from a moving vehicle several car lengths away. After a lengthy search, the only marijuana found was a small amount wrapped in a napkin inside one of the occupant’s shorts. While cases like that show the lengths some officers will go to get inside of someone’s car, not every search based on odor is so transparent. Most attorneys who responded merely complained of the frequent run-of-the-mill traffic stops turned searches turned more extensive police encounters based on those three magic words.  

Despite their incredible olfactory abilities, police don’t always find marijuana when they claim to smell it. They do, however, sometimes find other things that results in criminal charges. Sometimes they find drugs or guns. Other times they only find a driver with a suspended license or an occupant who missed court for a traffic ticket – either way, someone gets arrested. Sometimes they just find someone who doesn’t like being harassed by the police and tells them so, and sometimes that person gets arrested, too. Whatever the outcome of the search, courts have made one thing clear – the fact that no marijuana was found does not make the search unreasonable, even though the odor was the basis for the search. The police have learned that they don’t need to actually find marijuana to make the search legal. They just have to say those three magic words, and the Fourth Amendment disappears.

Perhaps most troubling is that we don’t really know the scope of the problem. Because the courts decide these cases, illegal searches and seizures by the police are only put under a spotlight if the police find something and charge someone. The cases we see, the cases we talk about, are just examples where criminal charges were brought. We have no way of knowing how many completely innocent people get stopped and searched by armed agents of the state, based solely on the alleged smell of marijuana, and then just get sent on their way after the intrusion.

How do we stop these intrusions? How do we begin to rebuild the Fourth Amendment? We have two magic words of our own: Legalize marijuana. There is a special session of the General Assembly coming up, and in response to unprecedented worldwide protests of American police abuse, elected officials have vowed to address and reform policing and criminal justice in Virginia. Now is a perfect time to fully legalize marijuana and end this type of pretextual policing and the disparate racial impacts of prohibition more generally. If the General Assembly fails to accomplish full legalization, they should, at a minimum, prohibit police from conducting stops or searches based on the smell of marijuana. And then they must take real steps forward to ensure they are ready to fully legalize in 2021.

Shawn Stout and Andy Elders contributed to this article.