The fact of decriminalization of an ounce or less of marijuana does not obviate the ability of the police to conduct a frisk or a search for marijuana. The probable cause calculus remains the same, although the result of the search may only lead to a civil infraction. People v. Looby, 2018 V.I. Supreme LEXIS 11 (June 16, 2018):
Following from this, we note that when enacting the decriminalization statute, the Legislature is presumed to know the existing state of the law, see Cascen v. People, 60 V.I. 392, 404 (V.I. 2014), and was aware that officers are permitted to make warrantless seizures of items that are “‘evidence of a crime, contraband, or otherwise subject to seizure.'” Gumbs, 64 V.I. at 508 (quoting Thomas, 63 V.I. at 606 n. 4); Florida v. Harris, 568 U.S. 237, 243 (2013) (“A police officer has probable cause to conduct a search when the facts available to him would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.”); Texas v. Brown, 460 U.S. 730, 741 (1983). Section 607a(b)(1) provides that “[a]ny person who possesses one ounce or less of marijuana … is subject to forfeiture of the contraband”; section 607a(b)(2) provides that “[a]ny person who openly and publicly displays, consumes, or uses one ounce or less of marijuana … is subject to forfeiture of the contraband”; and additionally, section 607(a)(b)(3) provides that “[a]ny person under the age of eighteen at the time of the offense, who possesses one ounce or less of marijuana … is subject to forfeiture of the contraband.” It is evident that the Legislature’s intent in enacting Act No. 7700 was only to reduce criminal liability for possessing small quantities of the substance, while at the same time, keeping marijuana as a controlled substance subject to seizure by law enforcement, regardless of amount. Accord Robinson v. State, 152 A.3d 661, 663 (Md. 2017).
Further, although a person in possession of an ounce or less of marijuana may now avoid criminal penalization, the presence or absence of criminal penalization does not disturb our constitutional frisk and seizure inquiry. This is because reasonable suspicion—the predicate for a valid stop and frisk—does not depend on whether the People proved beyond a reasonable doubt that a defendant is “guilty”; instead, reasonable suspicion is a matter of constitutional and evidentiary concern turning on whether an officer reasonably concludes that evidence of contraband or of a crime may be present. Gumbs, 64 V.I. at 508. Notwithstanding enactment of Act 7700, the scent of marijuana (which remains contraband subject to seizure in this Territory) alone may be sufficient to establish reasonable suspicion or even “probable cause” to conduct further investigation into possible criminal acts or evidence of contraband. United States v. Ramos, 443 F.3d 304, 308 (3d Cir. 2006) (“It is well settled that the smell of marijuana alone, if articulable and particularized, may establish not merely reasonable suspicion but probable cause.”); United States v. Humphries, 372 F.3d 653, 658 (4th Cir. 2004) (“[T]he odor of marijuana alone can provide probable cause to believe that marijuana is present in a particular place.”); United States v. White, 593 F.3d 1199, 1203 (11th Cir. 2010) (“[T]he smell of marijuana alone may provide a basis for reasonable suspicion.”); United States v. Elkins, 300 F.3d 638, 660 (6th Cir. 2002); United States v. Kerr, 876 F.2d 1440, 1445 (9th Cir. 1989) (noting that “the presence of the odor of contraband may itself be sufficient to establish probable cause”) (citations omitted); United States v. Russell, 670 F.2d 323, 325 (D.C. Cir. 1982) (stating, “‘[p]lain view,’ we think it safe to say, encompasses ‘plain touch,’ and probably ‘plain smell’ as well”). Therefore, we agree with the Superior Court that because possession of marijuana remains unlawful in this Territory, officers may establish reasonable suspicion to conduct a Terry stop if the officer relied upon his or her experience and training to detect the presence of that contraband.