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Marijuana Laws and Probable Cause

Many jurisdictions across the country have experimented with changes to drug laws, and one of the most prominent changes is the decriminalization or legalization of marijuana. These changes have called other laws and practices into question, including the practice of drug testing for marijuana as a basis for employment and the law enforcement practice of using the smell of marijuana as a basis for a search.

Changes to Marijuana Laws

According to the LA Times, Delaware is one of the newest states to enact laws that are more lenient on marijuana possession and use. Delaware is one of a several states to “decriminalize” marijuana – which means that the possession or use of marijuana will still technically violate the law, but the punishment for such actions will be less severe than in the past. Another approach is legalization, in which possession or use of marijuana will not be against the law at all. In these jurisdictions, possession or use of marijuana will not result in any punishment – although there may be limits.

However, while there is an increasing number of states decriminalizing or legalizing marijuana, many jurisdictions and the federal government still have laws prohibiting the use, possession, or sale of marijuana, and will punish violations of those laws accordingly. The result is a rather confusing legal landscape, in which the same behavior can be treated dramatically differently depending on whether state or federal law is being applied, or depending on where the user is geographically located.

What is Probable Cause?

Probable cause is a legal term that is essential to law enforcement. Police officers need probable cause to make an arrest, search a suspect, search a suspect’s home or vehicle, or obtain a warrant.

In a number of cases over several decades, the United States Supreme Court has honed its definition of “probable cause.” Generally, the term means that an officer, based upon his observations and information available to him, must reasonably believe that there is a fair probability that a crime has been committed, or that evidence of a crime will be found in a particular place.

Recent Decisions Regarding Probable Cause

Now that marijuana use is legal in some jurisdictions, certain police procedures have been called into question. State courts in jurisdictions where marijuana is decriminalized or legalized, such as those in Massachusetts, have limited the ability of law enforcement to use the smell of marijuana to justify searches.

In the past, law enforcement officers used the odor of marijuana as a factor towards establishing probable cause to search a person or vehicle. If possessing marijuana was against the law, then indications of the presence of marijuana (such as its smell) also indicated that a law was being broken, and therefore provided probable cause for a search. However, if possession or use marijuana is no longer against the law in some jurisdictions, then the smell of marijuana alone is unlikely to provide a basis for probable cause in those jurisdictions.

Of course, not all states have decriminalized or legalized marijuana, so it’s important to understand the laws in your state to understand your rights when being stopped by law enforcement officers. In Florida, marijuana use and possession is still illegal, so its presence in those places is likely to provide a basis for probable cause.

If you or a loved one has been arrested it is important to have a knowledgeable attorney on your side to ensure your rights are upheld. Contact the experienced Florida attorneys at The Baez Law Firm for a consultation today.

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