Does Law Enforcement’s New Marijuana-Sensory Technology Pass The Constitutional Sniff-Test?
Since Colorado legalized medical marijuana in 2010, the number of marijuana-based odor complaints reportedly increased from seven in 2010 to 16 in 2012. Now that recreational marijuana is legal in the Rocky Mountain state, the number of complaints is expected to climb — especially as the number of grow areas expands to keep up with the demand.
For “polluting” the air with the scent of marijuana in Colorado, there is currently a fine of up to $2,000. According to local law, an odor violation occurs when an odor exceeds a 7-1 ratio, meaning one volume of odor is detected among seven or more volumes of non-odorous air. The last time there was an odor-law violation in the state was 1994, and it did not involve marijuana.
Although law enforcement in California and Colorado have historically engaged in legislation that dealt with the odorous issues of marijuana, and in some areas have tried to ban outdoor grow areas, many in the marijuana industry point out that the public and law enforcement have to realize that mature, high-grade marijuana — to the uninitiated — smells like a skunk or body odor, neither of which is a great smell.
Allen St. Pierre, executive director of the marijuana advocacy group the National Organization for the Reform of Marijuana Laws, told MintPress that marijuana users and growers often become accustomed to the smell, and said that personally, as a cannabis consumer, he now salivates at the scent of a skunk instead of wanting to puke.
Still, the state is working to legislate the odor by using a new piece of technology to investigate odor complaints: the Nasal Ranger. This $1,500, cone-shaped device resembles a megaphone, and allows a user to sample the air and detect the presence and strength of various odors, including marijuana.
Ben Siller, an investigator with the Denver Department of Environmental Health, said the Nasal Rangers can detect the presence of a wide variety of scents — from kitchen to industrial odors — and has been used by law enforcement officials for the past 20 years.
He added that while the pungent odor of marijuana may be more nasally striking than others, just because someone can smell growing marijuana plants or second-hand pot smoke doesn’t mean it’s a violation of the state’s odor laws.
But is such technology and the penalization for the smell of growing or second-hand marijuana smoke constitutionally sound? Sometimes it is, according to St. Pierre.
Constitutionality of sniffing out the ‘skunky’ source
St. Pierre said that the olfactory technology is part of a 30-year effort by law enforcement to find out what people are doing in the privacy of their homes or the confines of their cars, and said even if the technology violated a person’s constitutional rights, the courts will rule in favor of the government — not the people — like they have done with other technology.
“Sniffers are part of a long chain of government and law enforcement silver bullets,” St. Pierre said, adding that from his point of view, there is nothing better than a well-trained drug dog and an ethical police officer to sniff out odorous complaints.
He questioned what law enforcement officials would do with information such as how odorous a certain home or neighborhood was, and added that although an individual has constitutional rights in their home, those same Fourth and Fifth Amendment rights may not apply to individuals outside their homes, even if they are in their cars.
“The division line is so important,” he said, even the Supreme Court ruled in the Castle Doctrine that while a person is protected in their home, many of those constitutional rights are given up once you step outside your home.
He added that of the some 700,000 people arrested each year for marijuana, the vast majority are busted for pot possession in their automobiles. And since law enforcement officers often attend 10-hour training to become drug recognition experts, St. Pierre said the officer’s word in court that they smelled pot during their encounter with an individual is going to be almost impossible to negate.
When MintPress asked Minneapolis-based defense attorney Thomas Gallagher about the constitutionality of the sniffers, he said the use of the technology reminds him of a 2001 Supreme Court ruling, Kyllo vs. U.S., in which the court ruled the government cannot use devices not available for general public use, or explore details of a person’s private home without first obtaining a warrant.
Although he says he is not entirely familiar with the legal use of the Nasal Ranger technology, Gallagher said that because the sniffer is not available for general public use and explores the details of a home, person or vehicle that may otherwise not have been known, it’s likely law enforcement will need to obtain a search warrant before conducting any sniff-surveillance.
He also pointed out that odor is a difficult thing for police because close proximity is required to detect an odor. And even then, an officer can’t always pinpoint the origin of an odor, he said.
Gallagher provided this analogy. A police officer pulls over a car with three people. Even if the officer detects marijuana use, he can’t tell by his nose alone which of the three individuals in the car the odor may be coming from, or if it’s coming from another source.
Based on this, Gallagher says he would recommend using technology such as the Nasal Ranger as probable cause to obtain a search warrant. However, if the information gathered from the technology is more invasive and is used to invade a person’s privacy, it could be ruled a violation of the Fourth Amendment if the police failed to first obtain a search warrant.
St. Pierre agreed with Gallagher.
“Right now, these devices don’t tell police anything other than marijuana is being grown or smoked in the area,” St. Pierre said, which is why he believes the technology would be more useful for a tax collecting revenue agency than a police department, since marijuana is legal.
“Smell should be an issue of zoning,” St. Pierre said, especially since police officers have really important issues they could be focusing on.
But “police are still in a prohibition mindset,” which is why they use these products and will continue to do so until some higher official says otherwise. At that point, St. Pierre says the technology will likely be handed over to the tax collecting agencies that will use the sniffers to determine whether someone is illegally growing and/or selling marijuana to evade paying taxes.
Until that time, Coloradans who use and grow marijuana will have to be aware of the potent odors the plant exudes. Jimmy Smith, owner of the dispensary Higher Expectations, says that shouldn’t be a problem, since most grow facilities have ventilation systems that filter the air to keep the odor from spreading.
Fined by the odor complaint board
Although it appears — at least for now — that growers and marijuana consumers likely won’t be found in violation of the state’s odor law, according to a report in the Denver Post, just because the sniffer technology doesn’t record an odor violation doesn’t mean a marijuana user or grower won’t be fined.
Under the City of Denver’s laws, a person may be cited if five or more odor complaints are made within a 12-hour period, which according to Siller happens more frequently than the Nasal Radar.
Siller says that before a person is fined, he often contacts that individual to let them know when an odor complaint has been filed against them, so that people can try to work out the issue.
However, Denver City Council President Mary Beth Susman says the city should probably re-evaluate its odor laws, because odor can be subjective.
“It’s hard to legislate odor,” she said. “The strength that is required to register on the Nasal Ranger is something we need to look at. I also wonder if people will get used to the smell and the dislike of it now may change over time.”
Councilman Charlie Brown agreed with Susman that the law needs to be revisited. He said if he were hosting a party for 7-year-olds in his backyard and marijuana smoke drifted over the fence from his neighbor’s yard, he would be concerned but would talk to his neighbor first.
“The best way to prevent that is to communicate with your neighbor. The truth is creating an ordinance to prevent it is very difficult, but the council is looking at a variety of options,” Brown told the Denver Post.
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