VI: Despite MJ decrim, smell of MJ in a car is still a factor in RS

VI decriminalization doesn’t mean the smell of marijuana can’t still be reasonable suspicion of possession of a larger amount or potentially driving under the influence. People v. Cannergeiter, 2016 V.I. LEXIS 148 (Sept. 28, 2016):

This Court agrees with the courts of Maine, Maryland, Oregon, and Colorado and holds that the decriminalization of small amounts of marijuana does not prohibit officers from stopping a vehicle based on the detection of a smell of marijuana. First, the Legislature did not alter marijuana’s status as a Schedule I controlled substance under 19 V.I.C. § 595. As such, marijuana is contraband and is still illegal to possess in the Virgin Islands. See, e.g., Commonwealth v. Cruz, 459 Mass. 459, 473 (2011) (“[b]ecause marijuana remains unlawful to possess, any amount of marijuana is considered contraband.”); State v. Cabrera, 2016 R.I. Super. LEXIS 85, *9 (R.I. Super. Ct. July 21, 2016) (“The Decriminalization Statute … does not remove marijuana’s contraband status as it does not deschedule marijuana as a controlled substance ….”).

Neither the Fourth Amendment nor Act No. 7700 requires law enforcement officers to turn a blind eye to the suspected presence of an illegal substance in a moving vehicle. Act No. 7700 explicitly provides that marijuana, as contraband, is subject to forfeiture and that “all civil penalties … may be assessed by the appropriate court.” 19 V.I.C. 607(a). This language expressly permits law enforcement officers, in enforcing the statute, to confiscate the prohibited contraband (marijuana), issue citations, and keep the appropriate records to ensure that the fines are paid in a timely fashion. See 19 V.I.C. § 607a(b) (1) (providing that possession of one ounce or less of marijuana is a civil offense punishable by a fine of $100 and the marijuana “may be subject to forfeiture”). Accordingly, allowing officers to stop motorists based on the smell of an odor of marijuana emanating from the vehicle is consistent with the express language of Act No. 7700.