Legal scholars, activists, academics and law enforcement have all questioned the impact of the drug war on civil liberties. Many argue that like the prohibition of alcohol, the drug war has diminished civil liberties, particularly in the areas of search and seizure and the right to privacy. These issues could not be more timely given the changing landscape of drug policy in America. Pew and Gallup polls have indicated, for the first time, that a majority of Americans believe that marijuana should be legal. This change in public opinion is no doubt related to medical marijuana laws in 18 states and the District of Columbia and the legalization of marijuana for recreational uses by popular referendums in Colorado and Washington.
In the third of a four-part Baker Institute Viewpoints series, we ask: Will legalizing marijuana improve civil liberties?
A law enforcement officer merely needs to believe he or she has smelled marijuana, in order to restrain a person through stop or arrest. An officer can invasively search the arrested individual, even if the basis for arrest is a probable cause like marijuana odor. One of the many ways marijuana illegality harms civil liberties is by allowing law enforcement to search and seize a person for suspicious odor alone. If an officer detects marijuana odor from a vehicle, the officer does not even need to arrest in order to conduct a stop and search. If an officer suspects that marijuana odor is present in a room, the suspicion could supply probable cause for a more extensive search than would otherwise be acceptable. The law permits these deprivations of privacy and liberty despite empirical studies that show law enforcement’s detection of marijuana odor is not even reliable in indicating the plant’s presence.
Empirical studies, published in the Journal of Law and Human Behavior, examined the ability of humans to discern marijuana odor in replicated real-life circumstances experienced by law enforcement. The studies suggest the odor of marijuana is not reliably detectable by even those who possess an excellent sense of smell. Furthermore, dogs used by law enforcement are unreliable in detecting drugs in general. In a study published in the Journal of Animal Cognition, the data demonstrated that trained drug dogs falsely alerted to the presence of drugs hundreds of times in areas where drugs were in fact not present and were not likely to have been present in the past. If marijuana possession became legal, law enforcement would no longer need to utilize ineffective methods that result in the drastic reduction of one’s freedom and privacy.
One only needs to look to Supreme Court history to recognize that marijuana illegality has led to a restriction of one’s civil liberties. For the past 50 years, the Supreme Court has mainly used cases involving marijuana as vehicles to restrain fourth amendment protections against unreasonable search and seizures. For example, in decisions involving marijuana, the Supreme Court allowed for more extensive searching of automobiles, established more exceptions to the warrant requirement, and permitted drug testing without suspicion of drug use. Marijuana Supreme Court cases also established that department policies, which set guidelines for inventory searches, may be so broad as to offer few real limitations. Moreover, the Supreme Court used marijuana cases to increase greatly the ability of officers to make custodial arrests solely for minor infractions. Additionally, using marijuana cases, the Supreme Court authorized prolonged detentions of occupants of residences while officers pursue search warrants and failed to label extended traffic stops properly as arrests.
The possibility exists that, if marijuana had been legal, the Supreme Court could nonetheless have reduced fourth amendment protections through case decisions regarding drugs other than marijuana. However, review of fourth amendment cases still shows marijuana illegality has led to a more rapid diminishment of fourth amendment protections than non-marijuana cases would have allowed. If marijuana remains illegal, such frequent and drastic reductions to one’s liberty and privacy are bound to continue. One of the best ways to end the erosion of one’s fourth amendment protections is to legalize marijuana.
Furthermore, as 18 states, and the District of Columbia, have acknowledged, the law should allow patients the freedom to decide, in consultation with their physicians, if marijuana could be of medicinal benefit for them. In 2005, the Supreme Court used a medical marijuana case to validate the ability of Congress to criminalize marijuana use, even if a state’s law allows medical marijuana use. Such validation by the Supreme Court permitted federal raids of marijuana dispensaries nationwide. Since the decision however, eight more states have legalized medical marijuana, signifying recognition of a patient’s freedom to medicate in whatever way she sees fit under physician supervision, a freedom that the federal government has yet to recognize. Marijuana legalization would grant more liberties for patients by presenting greater options for their treatment.
Marijuana legalization would certainly lead to a less rapid diminishment of fourth amendment protections. With less reason for law enforcement to employ ineffective and intrusive methods, like stopping and searching based on marijuana odor, an individual will enjoy greater protections to his liberty and privacy. The freedom of patients to explore diverse medicinal options will also expand. Once marijuana possession becomes lawful, high court decisions that have previously used marijuana illegality to curtail fourth amendment protections may be challenged, and greater guarantees against unreasonable searches and seizures could be restored.
Rehman Bhalesha has a B.A. in government from the University of Texas at Austin and is completing a Juris Doctor at South Texas College of Law, where he was a recipient of the dean’s Merit Scholarship. As a law student, Bhalesha proposed and helped establish a collaboration between the Baker Institute and South Texas College of Law to draft model legislation regarding drug policy. He has also worked as an appellate intern with the Fort Bend district attorney’s office and is currently a research assistant at South Texas College of Law.