OK: Smell of burnt marijuana in car is still PC in MMJ state

The smell of burnt marijuana in defendant’s car was still probable cause, despite it being in a medical marijuana state. State v. Roberson, 2021 OK CR 16, 2021 Okla. Crim. App. LEXIS 16 (June 17, 2021):

[*P11] We now address the issue of whether legalization of medical marijuana in any way limits an officer’s development of probable cause resulting from the existence of or odor of marijuana in a vehicle. In Oklahoma legal marijuana possession is limited to those holding medical marijuana licenses and the amounts are strictly circumscribed by statute and administrative rules. See 63 O.S.Supp.2019, § 420(A) and (B); Okla. Admin. Code § 310:681-2-8 (2020). When no medical marijuana license is involved, possession of marijuana is prohibited pursuant to 63 O.S.Supp.2017, § 2-402(A)(1) (“It shall be unlawful for any person knowingly or intentionally to possess a controlled dangerous substance unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner, while acting in the course of his or her professional practice, or except as otherwise authorized by this act.”).

[*P12] That marijuana possession is legal in Oklahoma for those who are issued a valid medical marijuana license does not change the fact that marijuana possession otherwise is generally a crime in Oklahoma. Several states have determined that decriminalization of marijuana does not equate to blanket legalization and thus, the odor (or presence) of marijuana remains a factor indicating criminal activity despite statutes which decriminalize marijuana possession in certain circumstances. See, e.g., Robinson v. State, 451 Md. 94, 152 A.3d 661, 681 (2017) (concluding that a recent amendment to Maryland’s marijuana statute decriminalizing, but not legalizing, the possession of less than 10 grams of marijuana did not “alter existing case law concerning the search, seizure, and forfeiture of marijuana, which remains illegal” and that a “warrantless search of a vehicle is permissible upon detection of the odor of marijuana emanating from the vehicle”); People v. Zuniga, 372 P.3d 1052, 1059-1060, 2016 CO 52, ¶¶ 23, 28 (concluding that “the odor of marijuana remains relevant to probable cause determinations and can support an inference that a crime is ongoing even though possession of one ounce or less of marijuana is allowed [pursuant to a new] Colorado law” because “a substantial number of other marijuana-related activities remain unlawful,” and thus “the odor of marijuana is still suggestive of criminal activity”); State v. Senna, 2013 VT 67, ¶ 16, 194 Vt. 283, 79 A.3d 45, 51 (concluding that the passage of Vermont’s medical marijuana law “does not undermine the significance of the smell of marijuana as an indicator of criminal activity”); and State v. Sisco, 239 Ariz. 532, 373 P.3d 549, ¶¶ 16-17, 553-54 (2016) (rejecting the argument the odor of marijuana no longer provided law enforcement officers with probable cause to believe that criminal activity is taking place following the passage of Arizona’s medical marijuana statute, which “makes marijuana legal in only limited circumstances,” because “the odor of marijuana in most circumstances will warrant a reasonable person believing there is a fair probability that contraband or evidence of a crime is present.”).

[*P13] The above cases are well-reasoned and while not binding precedent on this Court their analyses should inform this Court’s resolution of the issue herein. The decriminalization of marijuana possession for those holding medical marijuana licenses in no way affects a police officer’s formation of probable cause based upon the presence or odor of marijuana.