For someone who was just mortified at the thought of confining a white male murderer pretrial just because he engaged in the perfectly legal activity of disappearing off the face of the Earth prior to criminal charges everyone knew were coming, UV is currently having one hell of a time grasping the idea that in states where weed is legal (and keeping in mind it can produce an odor even when in its unopened packaging, as several posters have pointed out to him) that the mere smell of weed alone may not amount to probable cause for an arrest for DUI, or even a search for weed.
ETA: starts around here for the curious but disengaged: https://boards.straightdope.com/t/police-interrogations/959024/154
Don’t forget, he insists it’s entirely appropriate for a Judge to take away an American’s rights as a long as it’s only one day and you get paid for it. He misses the point that even the idea of taking away someone’s rights at all so two companies can “talk it out” is a bad precedent.
I’ll just say that I am confused by the logic and legal theory behind being on duty as a cop, in the middle of an investigation now making a citizens arrest on federal charges that are legal in my state, doing a citizens search of the vehicle for something legal in my state, then putting my cop hat on and arresting on state charges for something I found on my illegal search. I mean I guess I could do it. Once. Then I would be fired and arrested.
Except he wasn’t. He was being his typical self, ignoring the arguments people were actually making. And he was called out by an actual lawyer for his bad legal reasoning.
To be fair, there was a team of ‘actual lawyers’ making the initial foray into that legal nonsense and an ‘actual judge’ ruling to temporarily stay the hirings.
Don’t want to further derail the FQ topic which is supposed to be about police interrogations rather than what is or isn’t legal under federal law. So I’ll post here.
Federal law?
Did you miss the memo? There is a widely reported loophole in the federal Agricultural Improvement Act of 2018 which decriminalizes cannabis with low concentrations of Delta-9 THC. Normally such strains do not produce a high. The loophole is that cannabis plants also produce Delta-8 THC in very tiny amounts, so they will extract this Delta-8 THC from legal plants. This extract is used in edibles and tinctures, but it can also be rubbed all over the “flower” of a Delta-9 THC deficient plant. The resultant product is federally legal cannabinoid that looks like weed, smells like weed, and tastes like weed. You can smoke it to get high, with the same paraphernalia such as rolling paper, though I’m told it’s more of a body high than head high.
On the state level, in 2019 West Virginia classified cannabis products with less than 0.3% Delta-9 THC concentrations as hemp, a non-controlled substance, rather than marijuana. This is codified under chapter 19, article 12E.
And indeed you can buy this stuff in West Virignia. Here’s a shop selling it in Morgantown. I don’t know about West Virginia, but in Florida this stuff is as ubiquitous as tobacco, with cannabinoid products in every gas station.
I am actually surprised at your posts, since you are a defense lawyer I would expect you to have argued that because legal hemp is indistinguishable from marijuana, the smell test is no longer probable cause for illegal possession.
On the other hand I agree with UV about smell being probable cause for a vehicular search for drug paraphernalia on suspicion of DUID. This seems to follow from Arizona v Grant, 556 U.S. 332 (2009), where the court ruled that police may conduct warrantless vehicular searches incident to a passenger’s arrest if they reasonably suspect the vehicle contains evidence of the offense. I think it’s reasonable to suspect a person who is driving erratically, whose car emits the odor of burning cannabis, of driving under the influence. Doesn’t matter whether it’s hemp or marijuana, DUID is DUID. And I think it’s reasonable to seize drug paraphernalia from the vehicle as evidence in support of that charge - for example ashes on the center console or carpeting, blunts or bongs that may have been stuffed in the glovebox or center compartment.
All in all, I thought that UltraVires had reasonable points in the Wisconsin hospital thread, especially contrasted with some of the histrionics. And then I see in the police interrogation thread that he seems to honestly believe that there’s a right to a “citizen’s search” when making a citizen’s arrest.
