D.Me.: When acting on smell of burning MJ, officer doesn’t have to determine whether def has an MMJ card to nullify PC

The smell of marijuana in a national park led to the ranger seeing defendant with a vaporizer smoking device and a stronger smell. This was probable cause, and probable cause doesn’t depend on the officer inquiring whether the defendant has a medical marijuana card. (That can be determined after the search as to whether to arrest.) United States v. Eden, 2017 U.S. Dist. LEXIS 46440 (D. Me. March 29, 2017):

The Court is not persuaded that Ranger Belskis had reason to believe Defendant was armed and dangerous. While in certain circumstances a person’s failure to follow the directives of a law enforcement officer can generate legitimate safety concerns, in this case, the fact that Defendant did not comply with a directive to put down the vapor pen and Ranger Belskis’ suspicion that Defendant was under the influence of an intoxicant do not generate a valid safety concern that justifies a pat down. Although in some instances suspected drug use might support a safety search, suspected use at a campsite under the circumstances in this case does not generate a safety concern. In this case, the search was most likely prompted by Ranger Belskis’ desire to secure the contraband he observed Defendant place in his pocket, and was not the product of a safety concern.

The search, however, could nevertheless be valid if Ranger Belskis had probable cause to believe Defendant committed a criminal offense in his presence. While on foot patrol, Ranger Belskis smelled marijuana, traced the smell to Defendant’s campsite, observed Defendant and a companion use and pass a vapor pen, observed Defendant conceal the vapor pen in his hand as Ranger Belskis approached, and observed Defendant place the vapor pen in his pocket after Ranger Belskis asked him to relinquish the item. Given his observations, Ranger Belskis had a reasonable basis to believe that Defendant had committed and was committing a criminal offense in his presence (i.e., possession of a controlled substance in a park in violation of 36 C.F.R. § 2.35(b)(2)).

Defendant, however, argues that Ranger Belskis did not have probable cause to arrest because federal law recognizes an exception to a controlled substance offense when the substance in question “was obtained by the possessor directly, or pursuant to a valid prescription or order, from a practitioner acting in the course of professional practice or otherwise allowed by Federal or State law.” 36 C.F.R. § 2.35(b)(2). According to Defendant, because Ranger Belskis could not know whether Defendant had a medical marijuana license and did not first inquire whether he had a license, Ranger Belskis could not reasonably conclude that Defendant had committed or was committing a criminal offense.