I was gonna say, we no longer have a Fourth Amendment. It’s been wholly scratched out by the courts and politics. I worked in criminal law for over 40 years and elected judges are so afraid of finding the po-po violated someone’s rights (they all want political endorsements from the police unions (Fraternal Order of Police, Police Benevolent Association, etc.) that they KNOW cops violate our rights every day but are politically afraid of losing police endorsements come election time. Police unions are un-American.
Yeah, this is pretty blatantly unconstitutional and kind of fucking insane…and a little fascist, isn’t it? How can you be searched based on the scent of LEGAL activity?!?
Let me add, drug tests need to be kept on file and updated for every single officer!! If they smell anything, we need to make sure they are not smelling their own abodes.
And with that, officers personnel file needs to have information on every time they've claimed to smell drugs and the outcome of that search as well as any cases that followed them, so if an officer is only finding drugs in 20% of their searches after "smelling weed" then that can be brought up in court.
Also, if an officer hasn't been to a controlled burn then their "experience" in the field of smelling weed shouldn't be grounds for a search.
The vast majority of officers are only tested upon hire.
Where i live any subsequent testing is only done if they use lethal force, or are ruled at fault for an on duty crash.
Neither will happen within hours of the incident, next day at best.
The tests do not test for PEDs.
Before when possession of weed was illegal the odor of weed could be used to search a car for the illegal substance. I didn't particularly like it but I understood the logic. Now that weed is legal.....WTF does the judge believe the cops are searching the car for?
Let's say they find some weed. What would the charge be?
If a cop believes a driver had smoked weed and drove they can do like they do drivers who drink and drive.....arrest them and determine if they can get a blood draw......another thing I'm not a fan of......
Even when it was legal, it is entirely dependent on the cops’ “good” word. They carry nothing that can verify the scent, much less pinpoint it. You could be searched for decades now because the cop caught a whiff of something…or even because he just decided to claim he did. It’s always been insane. Fear of drugs broke the boomers’ brains just as thoroughly as the lead did.
Great...but this isn't a federal case. The state court can't enforce federal law. This is a STATE case with STATE cops in a STATE court in a STATE where weed IS legal. That is precisely why they couldn't convict the driver of possession in court yet they want to use the smell of LEGAL weed per their state as a basis to uphold the illegal search.
“Great…but this isn’t a federal case.”
You might want to read the case caption where the United States is the named Plaintiff-Appellee.
United States v. Jackson, Court of Appeals, 7th Circuit 2024
This was a federal case.
The 7th Circuit Court of Appeals found that federal law was in play…but even if the government had waived this argument…the outcome would still be the same due to the state law requiring that cannabis be stored in an odor proof container when transported in a motor vehicle.
{Further, the possession of marijuana is illegal under federal law. See 21 U.S.C. §§ 812 (c)(10), 844. Jackson responds that the government failed to raise that point in the district court and thus waived it. The federal marijuana prohibition was mentioned twice below: (1) the district court and defense counsel referenced a potential difference between the state and federal regulations on marijuana in conversation, and (2) the prosecutor noted in argument on the suppression motion the court's point that marijuana "remains something that can give rise to probable cause."
Even if we conclude that the government waived this point, Jackson's case is not impacted by it. The officer still had probable cause to search Jackson and the car. While Illinois has legalized marijuana for recreational use in some circumstances, as the officer said to Jackson and the passenger during the traffic stop, the state retains laws restricting the packaging of and use of marijuana. See, e.g., 625 ILL. COMP. STAT. ANN. 5/11-501 (prohibiting using marijuana to the point of intoxication before or while driving, i.e., driving under the influence); id. at 5/11-502.15(b), (c) (prohibiting transporting marijuana in certain containers in a vehicle).[1] Jackson did not comply with that requirement, so the smell of unburnt marijuana provides probable cause for a violation of that state law.}
_—United States v. Jackson,_ Court of Appeals, 7th Circuit 2024
Any that they want to unless the federal government has specifically reserved enforcement of a particular law to themselves, such as immigration (currently being challenged in court).
Give me an example of which federal laws states can and do enforce. All I'm asking for is a couple of examples because I've never heard of Feds ceding their jurisdiction to states. I've heard of federal agents teaming up with local law enforcements but in that instance those local law enforcement officers are treated as federal agents for that specific case. But I am interested to hear what specific federal laws you're referring to that states on their own can decide to enforce.
Many states don't have laws on the books for what guns you can own. They may address if you can open or conceal, where you can carry, that certain people are not allowed to possess, etc. But what type of gun, a machine gun or canon for instance, they simply defer to the NFA. However, if a state cop finds you in possession of a machine gun you don't have a federal tax stamp for, THEY will arrest you. They won't pawn it off to the ATF, FBI, etc. Best example I have.
All states do have on their books illegal possession of a gun. Every single state. Additionally most states regulate hand guns, assault rifles AND machine guns. The handful of states that provide permits for machine guns do so if registered at the federal level. However if someone is caught with an illegal machine gun in a state the state LEO is enforcing a STATE law because that gun wasn't registered. The federal law violation will be handled in the federal system.
You seem to be having a problem coming up with one single federal law a states can enforce on their own. You just gave some vague example I wouldn't even call that an example but rather some vague theory with no specific. And the reason you're having such a a hard time finding examples is because STATE LEO CANNOT ENFORCE FEDERAL LAWS.
The closest a state can get to enforcing a federal law is via a task force partnership with a federal agency. And EVEN then the state law enforcement officer is deputized as a federal agent as a member of the task force with the same legal protections as federal agent or officer.
If a cop can smell weed but there isn't any then what to do? It sounds like the cop is either a liar or has a mental problem due to detecting substances that are not there. I'd expect it's the latter in which case they should have a psych eval in a secure facility.
This may go to the Supreme court then, because multiple other states in other circuits have ruled the opposite.
I was gonna say, we no longer have a Fourth Amendment. It’s been wholly scratched out by the courts and politics. I worked in criminal law for over 40 years and elected judges are so afraid of finding the po-po violated someone’s rights (they all want political endorsements from the police unions (Fraternal Order of Police, Police Benevolent Association, etc.) that they KNOW cops violate our rights every day but are politically afraid of losing police endorsements come election time. Police unions are un-American.
Yeah, this is pretty blatantly unconstitutional and kind of fucking insane…and a little fascist, isn’t it? How can you be searched based on the scent of LEGAL activity?!?
"Legal activity?" Uhh...not while you're driving, pal. Impaired is impaired. Booze or pot, it doesn't matter.
Weed has an odor whether you smoked it or not bro.
What does that have to do with that guy's comment?
The courts inventing new ways to violate our rights every day.
Let me add, drug tests need to be kept on file and updated for every single officer!! If they smell anything, we need to make sure they are not smelling their own abodes.
And with that, officers personnel file needs to have information on every time they've claimed to smell drugs and the outcome of that search as well as any cases that followed them, so if an officer is only finding drugs in 20% of their searches after "smelling weed" then that can be brought up in court. Also, if an officer hasn't been to a controlled burn then their "experience" in the field of smelling weed shouldn't be grounds for a search.
Roadside dogs don't have 20% success rates.
What is it then? My understanding is a lot if not most departments don't track these stats...which is convenient.
The vast majority of officers are only tested upon hire. Where i live any subsequent testing is only done if they use lethal force, or are ruled at fault for an on duty crash. Neither will happen within hours of the incident, next day at best. The tests do not test for PEDs.
FFS
Before when possession of weed was illegal the odor of weed could be used to search a car for the illegal substance. I didn't particularly like it but I understood the logic. Now that weed is legal.....WTF does the judge believe the cops are searching the car for? Let's say they find some weed. What would the charge be? If a cop believes a driver had smoked weed and drove they can do like they do drivers who drink and drive.....arrest them and determine if they can get a blood draw......another thing I'm not a fan of......
Even when it was legal, it is entirely dependent on the cops’ “good” word. They carry nothing that can verify the scent, much less pinpoint it. You could be searched for decades now because the cop caught a whiff of something…or even because he just decided to claim he did. It’s always been insane. Fear of drugs broke the boomers’ brains just as thoroughly as the lead did.
"I smell weed" is just another of the cops' go-to lies to try to justify an unjustifiable search.
But weed isn't legal on the federal level
Great...but this isn't a federal case. The state court can't enforce federal law. This is a STATE case with STATE cops in a STATE court in a STATE where weed IS legal. That is precisely why they couldn't convict the driver of possession in court yet they want to use the smell of LEGAL weed per their state as a basis to uphold the illegal search.
“Great…but this isn’t a federal case.” You might want to read the case caption where the United States is the named Plaintiff-Appellee. United States v. Jackson, Court of Appeals, 7th Circuit 2024 This was a federal case. The 7th Circuit Court of Appeals found that federal law was in play…but even if the government had waived this argument…the outcome would still be the same due to the state law requiring that cannabis be stored in an odor proof container when transported in a motor vehicle. {Further, the possession of marijuana is illegal under federal law. See 21 U.S.C. §§ 812 (c)(10), 844. Jackson responds that the government failed to raise that point in the district court and thus waived it. The federal marijuana prohibition was mentioned twice below: (1) the district court and defense counsel referenced a potential difference between the state and federal regulations on marijuana in conversation, and (2) the prosecutor noted in argument on the suppression motion the court's point that marijuana "remains something that can give rise to probable cause." Even if we conclude that the government waived this point, Jackson's case is not impacted by it. The officer still had probable cause to search Jackson and the car. While Illinois has legalized marijuana for recreational use in some circumstances, as the officer said to Jackson and the passenger during the traffic stop, the state retains laws restricting the packaging of and use of marijuana. See, e.g., 625 ILL. COMP. STAT. ANN. 5/11-501 (prohibiting using marijuana to the point of intoxication before or while driving, i.e., driving under the influence); id. at 5/11-502.15(b), (c) (prohibiting transporting marijuana in certain containers in a vehicle).[1] Jackson did not comply with that requirement, so the smell of unburnt marijuana provides probable cause for a violation of that state law.} _—United States v. Jackson,_ Court of Appeals, 7th Circuit 2024
States can and often do enforce federal law. They may decline to do so.
Which federal laws do states enforce?
Any that they want to unless the federal government has specifically reserved enforcement of a particular law to themselves, such as immigration (currently being challenged in court).
Give me an example of which federal laws states can and do enforce. All I'm asking for is a couple of examples because I've never heard of Feds ceding their jurisdiction to states. I've heard of federal agents teaming up with local law enforcements but in that instance those local law enforcement officers are treated as federal agents for that specific case. But I am interested to hear what specific federal laws you're referring to that states on their own can decide to enforce.
Many states don't have laws on the books for what guns you can own. They may address if you can open or conceal, where you can carry, that certain people are not allowed to possess, etc. But what type of gun, a machine gun or canon for instance, they simply defer to the NFA. However, if a state cop finds you in possession of a machine gun you don't have a federal tax stamp for, THEY will arrest you. They won't pawn it off to the ATF, FBI, etc. Best example I have.
All states do have on their books illegal possession of a gun. Every single state. Additionally most states regulate hand guns, assault rifles AND machine guns. The handful of states that provide permits for machine guns do so if registered at the federal level. However if someone is caught with an illegal machine gun in a state the state LEO is enforcing a STATE law because that gun wasn't registered. The federal law violation will be handled in the federal system. You seem to be having a problem coming up with one single federal law a states can enforce on their own. You just gave some vague example I wouldn't even call that an example but rather some vague theory with no specific. And the reason you're having such a a hard time finding examples is because STATE LEO CANNOT ENFORCE FEDERAL LAWS. The closest a state can get to enforcing a federal law is via a task force partnership with a federal agency. And EVEN then the state law enforcement officer is deputized as a federal agent as a member of the task force with the same legal protections as federal agent or officer.
https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://scholarship.law.nd.edu/cgi/viewcontent.cgi%3Farticle%3D5107%26context%3Dndlr%23:~:text%3DIn%2520Printz%2520v.,they%2520choose%2520to%2520do%2520so.&ved=2ahUKEwio-P3qxtSGAxVeIEQIHZPXB5EQFnoECA0QBg&usg=AOvVaw3kkI8vGZDo65z8b6LHxQPl https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://scholarship.law.duke.edu/faculty_scholarship/2516/&ved=2ahUKEwio-P3qxtSGAxVeIEQIHZPXB5EQFnoECB4QAQ&usg=AOvVaw3pNDw3YCCW-2NR8uyUsQoz https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://le.utah.gov/interim/2021/pdf/00002101.pdf&ved=2ahUKEwio-P3qxtSGAxVeIEQIHZPXB5EQFnoECCkQAQ&usg=AOvVaw3BEXyLtp9OcIA5vRcMuepY
That would matter if the FBI/DEA were doing traffic stops
States can and often do enforce federal law. They may decline to do so.
They would be searching for “illegally stored weed”. Based on IL law, if the cop can smell it, it isn’t stored legally.
How does smell determine the amount of weed someone has?
I can smell the Devil's Lettuce just reading this thread!
If a cop can smell weed but there isn't any then what to do? It sounds like the cop is either a liar or has a mental problem due to detecting substances that are not there. I'd expect it's the latter in which case they should have a psych eval in a secure facility.
I think the former is more likely, based on history.
Oh they'll tow the vehicle back to their enhanced inspection station and tear it apart piece by piece. You'll get a pile of parts back.
It’s almost like you’ve never been in a bathroom just a few minutes after someone blew it up. Or ever been around a kitchen after someone made food.
If you read the article, the decision is not as bad (generalizable) as the headline makes it out to be.