I-Team: Aroma of pot raises questions over legality of police se - 8 News NOW

I-Team: Aroma of pot raises questions over legality of police searches

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Kent Bitsko Kent Bitsko
Vince Savarese Vince Savarese

LAS VEGAS -- For decades, police have used the smell of marijuana as probable cause to search cars and people during routine investigative stops. But when pot is legal, can cops still use the aroma of weed to justify a search?

There are a number of thorny issues about states legalizing marijuana for personal use, while it remains illegal under federal law. In the past, the smell of pot has been widely used by police for what begins as routine search, but sometimes turns into something much bigger.

A dramatic demonstration of that was caught on the dash camera of a Nevada Highway Patrol vehicle.

Car passenger: "What are we even stopped for?"

NHP trooper: "It doesn't matter what you're stopped for, you're stopped now and I smell the odor of marijuana in the car. Give it up."

The dash cam video was recorded on I-15 near Moapa. It graphically illustrates how a whiff of weed can launch an investigation that lands a passenger in handcuffs and leads to a warrantless search of the car. That search turns up $53,000 in cash and less than three ounces of pot.

NHP trooper: "Quit moving around or you're going to go to jail, understand? Quit moving around."

"You see it most often on the open roads, with vehicle searches. It's common place," said Vincent Savarese, an attorney.

Savarese does not represent anyone pictured in the dash cam video and though he has concerns about the validity of this particular stop, he says if a stop is valid, the smell of pot from a car is grounds in Nevada for police to search even if the driver has a medical marijuana card.

"The issue is whether the individual is perhaps in possession of more that the amount that is lawful for medical use purposes," Savarese said. "A card, you know, it doesn't give you the right to haul a hundred pounds."

All over the country -- as marijuana laws are eased -- the question being raised is: If possessing pot is not a crime, can the smell of marijuana justify a search?

The headlines from Boston last week gave the answer for Massachusetts. The supreme court there said police may not use the smell of pot, by itself, to justify a search. The court noted the legislature de-criminalized possession of small amounts of marijuana and said police should "focus their attention elsewhere."

In Washington state, where recreational marijuana recently became legal, Seattle police are looking to teach old dogs new tricks.

"What we're doing since I-502 passed is desensitizing them to the smell of marijuana," said Sgt. Sean Whitcomb, Seattle Police Department.

Seattle police want to avoid having scent detection dogs alerting to a substance that's no longer illegal, but that philosophy is not universal, even in Washington. Tacoma police have no plans to train their dogs to ignore weed, much to the consternation of people who helped write the state's new marijuana law.

"That means that people who are in complete compliance with the law might be stopped and sniffed and detained for longer than necessary for questioning," said Alison Holcomb, ACLU.

"The odor is only one component, especially with the law changing," said Kent Bitsko, HIDTA drug task force. "An officer -- I would hope --  would not use just the smell of marijuana to conduct a search. They would use that as a component of their probable cause/reasonable suspicion to continue."

As far as Nevada goes, Bitsko says it's not likely we'll soon see police canines ignoring the scent of pot especially since only a small percentage of the state's population has medical marijuana cards.

"There's still a lot more people out there that are using it illegally than are using it legally. So, it will be my bet that we will continue to keep training our dogs the same way until we have a court decision that tells us otherwise," Bitsko said.

The Massachusetts high court has already told officers they can't use their noses to justify a search. However, the law is still evolving in 23 other states where pot is legal in some form.

Unless there is a court decision, in Nevada, even a card carrying medicinal marijuana user with a legal amount is subject to a search solely on the scent of marijuana.

Savarese says all the card does is give a person immunity from prosecution, not from a search.

While the I-Team was trying to obtain a copy of that NHP dash cam video, we learned the highway patrol is conducting an "administrative review" of the incident. The NHP would not provide the I-Team with a copy of the video, it was obtained through other sources.


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