The original post I was responding to said police could use your refusal to consent to a search as probable cause to search.
I commented that that is not true.
You said, OK, but they just have to make you wait while they call in a drug dog.
I pointed out that police can’t do that either unless they have reasonable suspicion (and even then, you can’t be detained for very long).
I’ve been pointing out that what’s being said is wrong from a legal standpoint. I’m not going to keep following the moving goal posts.
I’m certainly not going to defend Batson in its current form.
But it remains true that a refusal to consent to a search cannot be used as part of the evidence supporting probable cause. And police without reasonable suspicion can’t prolong a traffic stop to wait for for a drug dog.
Oh, and in my state, where marijuana is legal, police will get nowhere by saying they can smell it.
And it is not moving goalposts. It is noting that while the law may say one thing, as a practical matter, the reality does not match the legal ideal. Not even close really. If the rules say you cannot do “X” but rule-“X” is flouted as a matter of course of what use is the rule?
So then what, if the defendant can show they were nowhere near alcohol at the time? Timeline security footage shows the defendant leaving the hospital at 1AM after spending 12 hours with their dying grandmother, they were pulled over at 1:05AM no alcohol in the car 5 blocks from the hospital.
Or go to a hospital and ask for a alcohol/drug test… Was standard urban legend advice when this sort of situation came up.
DUI would require a breathalyzer. The only time I had a breathalyzer test, I blew zero. They let me go. (But didn’t argue with the cops, since as designated driver in someone else’s car they could have given me a ticket for forgetting the headlights.) OTOH, they did not search the car.
Yup…it now is incumbent on the person to prove they are innocent. Time to go to court. Maybe attorney fees. Maybe have to explain things to their employer or parents. Etc.
If they can do all of that the officer just shrugs and claims an oopsie. There is no downside for the cop (barring something really, spectacularly egregious). They have mostly only upside to violate your rights.
Under existing precedent, an officer is not liable, even if he or she violates the Constitution, unless it was “clearly established” by prior cases that the conduct at issue was unconstitutional. SOURCE
I disagree with you. DUI can be for drugs as well. The smell of weed in the car, even if it is legal in your state, is certainly PC for a DUI arrest, just like an open beer or the smell of alcohol.
I’m in Pennsylvania where we have a medical marijuana program. Medicating while driving is certainly not legal. The concern is that the odor of cannabis doesn’t imply consumption. I am permitted to have my medication in my vehicle as long as it is in its original packaging. And the program has some stinky sticky.
Currently in Pennsylvania odor of cannabis is legal in a car. There is an ongoing battle to hammer out the details.
I’m not seeing it. Alcohol is legal in PA, but you can’t drink it in your car. And if you are pulled over and there is the smell of alcohol, then that should be RAS that you are under the influence, no?
ETA: Not the odor of packaged marijuana, the skunk smell.
The odor of alcohol isn’t obvious if the container is unopened. The concern in PA is that weed stinks even in a closed package. Besides that, in Pennsylvania it might be legal for the driver or passengers to possess. And asking about someone’s medicine is something we don’t want to get into.
You can’t drink alcohol in the car, and typically you can’t even have an open container in the car - and you can’t smell alcohol from an unopened container , so if there’s an alcohol smell coming from the car, either someone has been drinking or there’s an open container in the car. I’m not at all sure that there are laws regarding open containers of pot.
And I don’t know how much time you spend in the vicinity of pot smokers - but I do know that some of them carry the smell with them just like cigarette smokers. I assume the smell is emanating from their hair or clothes so that the smell doesn’t necessarily indicate that there is even any weed in the car right now.
That may be a new thing that has to be analyzed under existing law. It is still illegal federally, so the cops could say that they were being good citizens and enforcing federal law. I would use that if I was a state prosecutor. But the medical argument doesn’t wash. If I have an open pill bottle for a benzo, they can surely ask why I have open pills and driving.
“The odor of marijuana alone does not amount to probable cause to conduct a warrantless search of the vehicle but, rather, may be considered as a factor in examining the totality of the circumstances,” wrote Chief Justice Max Baer for the majority.
So in Pennsylvania “I smell marijuana” is no longer a thing.
How exactly would a state prosecutor prosecute someone for a federal crime?
Really? Are you saying that in your state I can’t travel with an unsealed bottle of valium? So that if I go on vacation I have to take an unsealed bottle with me and dispose of any remaining pills before I return to your state.
What I am saying is if I was a state prosecutor and an officer saw you weaving, and walked up to your car and smelled marijuana and you had an open pill bottle of valium in your car, that he would have RAS that you were driving under the influence. And I would argue that the search of your car, even with marijuana being legal in PA, was legit because you are in violation of federal law.