Opinion: Detroit Police Struggle to Adjust to Legalized Marijuana

Police are attracted to the smell of marijuana. If police officers smell the odor of cannabis during traffic stops in areas where cannabis is against the law, they have the authority to search the vehicle and take any cash they discover. They can also use the car.

Once the government takes possession, it can use civil forfeiture, which is a law enforcement tactic that allows agencies to permanently keep seized assets. It operates similarly to highway robbery, but with legal authorization from the court.

There is no need for anyone to be arrested or convicted. After the process is finished, the participating agencies can divide the money among themselves. Michigan collected over $439 million in state and federal forfeiture revenue between 2000 and 2019.

Civil forfeiture is a profitable practice, and it often begins with the smell of marijuana. However, there is a problem that the police are facing in Michigan. In 2018, voters approved the use of cannabis for recreational purposes.

Using marijuana in a car is still against the law. However, drivers are now allowed to have the drug, which means that police officers no longer have a valid reason to search their vehicles without a warrant. The Detroit Police Department is struggling to adapt to the new way of doing things.

On October 8, 2020, five police officers from Detroit were driving to a home compliance check when they saw a parked Jeep Cherokee. A police corporal noticed the smell of marijuana coming from the vehicle, so she pulled over and started questioning the driver and her passenger, Jeffery Scott Armstrong, on the side of the road.

“How long have you been smoking marijuana in the car?” the corporal asks in a transcription of the bodycam video. “I can detect the odor from outside.” Don’t be surprised. I can detect the scent.

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Before 2018, a situation like this would have been acceptable. However, simply smelling marijuana is no longer considered a crime. The corporal should have continued driving.

The decision to stop and search the Cherokee was against the occupants’ Fourth Amendment rights, which protect against unreasonable search and seizure. The officers were not concerned. The police told Armstrong to get out of the vehicle. They found a gun under his seat and arrested him because he was not allowed to have a gun as a felon.

The police did not find any other illegal items. They didn’t find any marijuana, which isn’t surprising. The smell can stay on a person for a long time after they have legally smoked it or been around someone else who is using it. Police officers can sometimes lie or make mistakes. A study found that out of 3,300 vehicle searches in Philadelphia based on the smell of marijuana, the police found illegal items less than 10% of the time.

Even though they haven’t been very successful in the past, police are proud of their ability to smell things. In 2019, three Indiana officers testified that they were able to detect less than 1 gram of unlit marijuana in a closed container inside a moving car that was over 100 yards away. This happened even though there was a breeze and traffic passing by.

Drug-sniffing dogs are incorrect more than 50% of the time. These trained individuals can identify the presence of marijuana, but they cannot tell the difference between fully legal hemp cigarettes and partially legal marijuana. K9s cannot communicate when they detect marijuana compared to other drugs like cocaine. The alerts they provide are not tailored to specific states like Michigan, so they are not useful.

All people and dogs who sniff marijuana need to adapt. Armstrong requested that Michigan courts give guidance by filing a motion to suppress evidence obtained during a search in 2020. In 2022, a trial court approved his request and the Court of Appeals of Michigan agreed with the decision. The state was not happy with the situation, so they asked the Michigan Supreme Court to get involved. The justices have agreed to help.

The Institute for Justice, a public interest law firm, along with the Cato Institute, submitted a friend-of-the-court brief in the case. Our stance is straightforward: If a substance is allowed by law, then its smell cannot be used as a reason to conduct a search.

In a broader sense, Armstrong’s case allows for a thorough review by the court of the decisions made by officers in the field regarding probable cause. Civil forfeiture can influence these decisions, leading to financial motivations for aggressive policing.

Armstrong did not lose any money when he had an encounter with the police, and the officers did not take away the Cherokee. However, there are situations where things don’t go as expected, and innocent property owners can experience negative consequences. We have litigated cases in Wayne and Oakland counties, which demonstrates how.

Officers may use any reason to conduct a search without a warrant, even if someone appears or smells suspicious.

Robert Frommer is a senior attorney and director of the Project on the Fourth Amendment at the Institute for Justice in Arlington, Virginia. Daryl James works as a writer for the Institute for Justice.