The U.S. Supreme Court recently agreed to hear a case involving a Texas police officer, Roberto Felix Jr., who shot and killed a motorist, Ashtian Barnes, after stopping him for toll violations tied to the rental car he was driving. The issue in Barnes v. Felix is whether that use of deadly force, which happened after Felix leaped onto the car as Barnes began driving away, should be assessed based solely on “the moment of the threat” or based on an analysis that includes the circumstances that produced the threat. But another detail of the encounter reflects the role that the purported odor of marijuana plays in police stops that may lead to humiliating searches, cash seizures, arrests, or, as in this case, potentially lethal violence.
When Felix asked Barnes for his driver’s license and proof of insurance, a federal judge noted in 2021, “Barnes informed him that he did not have his license and that he had rented the vehicle a week earlier in his girlfriend’s name.” Barnes started “reaching around the vehicle and rummaging through papers.” Felix told him to stop “digging around” and “asked Barnes whether he had anything in the vehicle he should know about, claiming he smelled marijuana.” Although a search conducted after Felix killed Barnes found no marijuana, the alleged odor helped escalate the encounter, indicating that Felix suspected Barnes of criminal activity as well as toll violations.
A ballot initiative that Dallas voters overwhelmingly approved this week aims to avoid such escalation. In addition to generally barring local police from arresting people for marijuana possession misdemeanors, Proposition R says “Dallas police shall not consider the odor of marijuana or hemp to constitute probable cause for any search or seizure.” That seemingly modest restriction undercuts an excuse that in practice gives cops the discretion to stop, harass, and search pretty much anyone by claiming to smell pot.
Proposition R reflects an ongoing controversy over marijuana odor and probable cause. In states that have legalized marijuana for medical or recreational use, some courts have held that the smell of cannabis, whether detected by a human or a police dog, can no longer justify a search, since it does not necessarily constitute evidence of a crime. And while Texas has not legalized marijuana for any use, it has legalized hemp, which comes from the same plant species and cannot be distinguished from marijuana without a laboratory test to measure THC content.
In 2019, Texas Gov. Greg Abbott signed House Bill 1325, which changed the state’s definition of “marihuana” to exclude “hemp, as that term is defined by Section 121.001” of the Texas Agriculture Code. Consistent with federal law, Section 121.001 defines “hemp” as “the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
The difference between legal “hemp” and prohibited “marihuana,” in other words, is the THC concentration, which cannot be measured by smell or even by a field test. “Before H.B. 1325,” Dallas attorney Jon McCurley notes, “marijuana’s distinct and readily recognizable odor often [led] law enforcement to believe that a criminal act was occurring.” But after H.B. 1325, “simply detecting the odor of marijuana may not be enough to justify a search or seizure under the Fourth Amendment because in order to search or get a warrant, law enforcement officials must have probable cause that a crime has been committed or is about to be committed.”
Police are “trained to recognize marijuana,” a College Station, Texas, police officer told the CBS affiliate in Bryan after H.B. 1325 was enacted. “Coming from someone who’s been around hemp as well, they are very similar. They look the same; they smell the same.”
The law enforcement complications created by hemp legalization went beyond the justification for searches. After H.B. 1325 passed, Harris County District Attorney Kim Ogg, whose jurisdiction includes Houston, the state’s biggest city, said her office would no longer accept possession cases involving misdemeanor quantities of marijuana (less than four ounces) “without a lab test result proving that the evidence seized has a THC concentration of over .3%.” She added that “felony marijuana charges will be evaluated on a case by case basis by our Office” and “in the proper instances, such charges may be taken while lab test results are pending.”
Travis County District Attorney Margaret Moore, whose jurisdiction includes Austin, the state capital, said her office was dismissing 32 felony marijuana cases. “If we can’t prove our case, we need to dismiss,” explained Moore, who estimated that the necessary laboratory equipment would cost $185,000 and would not be up and running for eight to 12 months.
In February 2020, Steven McCraw, director of the Texas Department of Public Safety (DPS), said DPS labs would soon have the ability to distinguish between hemp and marijuana by measuring THC content. But he added that “we do not accept misdemeanor cases,” noting that Texas police make more than 80,000 marijuana misdemeanor arrests each year. “DPS will not have the capacity to accept those misdemeanor cases,” he said.
As McCurley notes, however, the problem is not just that prosecutors cannot prove someone possessed marijuana without laboratory tests that may be prohibitively expensive in misdemeanor cases. If the odor of pot, which is the same as the odor of hemp, does not establish probable cause, it cannot justify a search or an arrest under the Fourth Amendment.
“Because of the similarities in the definitions of marihuana and hemp,” a Texas appeals court noted in 2020, “the continued viability of the holding that officers and lay witnesses may identify marihuana through their senses alone may be in question.” The court did not address that issue because the case involved a marijuana arrest that predated hemp legalization. But courts in other states have recognized the Fourth Amendment implications of legislation that redefines cannabis crimes.
In 2008 Massachusetts voters approved Question 2, a ballot initiative that decriminalized possession of an ounce or less of marijuana, making it a civil offense punishable by a $100 fine. In light of Question 2, the Supreme Judicial Court of Massachusetts ruled three years later, the smell of burnt marijuana was not sufficient justification for ordering a motorist out of his car during a traffic stop. In 2014, the court extended the logic of that decision, saying a marijuana odor by itself does not justify a car search, since a search must be based on probable cause to believe that evidence of a crime will be discovered, and one ounce or less of cannabis (a civil offense) smells the same as more than an ounce (a misdemeanor). In 2015, the court went even further, ruling that the smell of burnt marijuana cannot by itself justify a traffic stop.
Pennsylvania legalized medical marijuana in 2016. Given that change, the Pennsylvania Supreme Court held in 2021, “the odor of marijuana alone does not amount to probable cause to conduct a warrantless search of a vehicle, but, rather, may be considered as a factor in examining the totality of the circumstances.”
A state appeals court reached a similar conclusion that year in Maryland, which legalized medical marijuana in 2014. “The odor of marijuana may, with other circumstances, provide reasonable suspicion that a person is involved in criminal activity,” it said. But “because an officer cannot tell by the smell of marijuana alone that a person is involved in criminal activity, we hold that the odor of marijuana, by itself, does not provide reasonable suspicion to conduct an investigatory stop.”
After Maryland voters approved recreational legalization in 2022, legislators made that restriction mandatory across the state. In 2023, when legalization took effect, they passed a law that prohibits police from treating the smell of cannabis as sufficient grounds for stopping or searching pedestrians or cars.
In 1976, Minnesota made marijuana possession involving no more than 42.5 grams (about 1.5 ounces) a “petty misdemeanor,” meaning it was “prohibited by law” and could result in a maximum fine of $200 but did not “constitute a crime.” Given the legal status of low-level marijuana possession, the Minnesota Supreme Court ruled in 2023, the smell of marijuana, by itself, “is insufficient to establish a fair probability that the search would yield evidence of criminally illegal drug-related contraband or conduct.”
In that case, as in Barnes v. Felix, police claimed to smell marijuana but did not find any (although they did find methamphetamine). The possibility that cops may erroneously or dishonestly say they caught a whiff of weed underlines the importance of preventing them from stopping people or conducting searches based on nothing more than an asserted odor. That license can easily be abused.
In 2012, The Virginian-Pilot reported that Chesapeake officers “have been pulling over cars on the grounds that they smelled marijuana while cruising down local roadways.” One of those cops explained how that technique supposedly worked: “We drive our patrol car with the vents on, pulling air from the outside in, directly into our faces.”
In 2011, New Jersey cops impounded a BMW based on a purported “strong odor of raw marijuana” and tore it apart over the course of three weeks with the help of drug-sniffing dogs, causing more than $12,000 in damage. They did not find the marijuana they supposedly smelled or any other contraband.
Two years later, after pulling over a car for contested reasons, an Idaho state trooper opened the trunk with the driver’s not-entirely-voluntary consent and, according to the resulting lawsuit, “claimed he could smell the odor of marijuana,” despite “the strong gusts of wind and precipitation that day.” The ensuing search of the car discovered nothing illegal. The driver’s lawyer told The Denver Post his client “does not use marijuana and never has.”
In 2018, the Kansas Supreme Court upheld a warrantless apartment search based on a cop’s claim that she “smelled a strong odor of raw marijuana emanating from the apartment” while standing outside the front door. What police ultimately discovered was 25 grams (less than an ounce) of marijuana, which was inside a sealed plastic container, inside a locked safe, inside a bedroom closet about 30 feet from where the officer had been standing. The cops also found “a small amount of marijuana on a partially burnt cigarillo in the living room,” which would have smelled like burnt marijuana, not “raw marijuana.”
That same year, a Louisville, Kentucky, SWAT team terrorized an innocent family during a fruitless home invasion. The raid was based partly on “a strong smell of fresh marijuana” that a detective claimed to have noticed while standing on the front porch.
Cops, aided by their not-so-trusty dogs, commonly use the real, imagined, or invented smell of marijuana to justify outrageous invasions, including futile searches, highway and airport robbery, and roadside sexual assault. The odor of pot even figured in the 2016 death of Minnesota motorist Philando Castile, who was shot by a cop who later said the smell frightened him.
By approving Proposition R, Dallas voters have taken a step toward preventing such abuses. Texas courts should go further in light of hemp legalization by eliminating this all-purpose excuse for police harassment.
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