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Probable Cause to Believe What? Partial Marijuana Legalization and the Role of State Law in Federal Constitutional Doctrine

Criminal Law Bulletin, Forthcoming

San Diego Legal Studies Paper No. 17-301

25 Pages Posted: 21 Aug 2017 Last revised: 18 Sep 2017

Kevin Cole

University of San Diego School of Law

Date Written: August 20, 2017

Abstract

When simple possession of marijuana was invariably illegal under state law, a dog alert or a police officer’s own perception of the scent of raw or burnt marijuana sufficed to permit a search for the source of the scent. As states went beyond decriminalization to legalize possession, for medical or recreational use, the smell of marijuana became less probative on the question of whether the state’s laws were being violated. But even in legalization states, courts have upheld an officer’s right to search a car upon detecting the scent of marijuana. The courts’ explanations have been analytically troubling. Analyzing the problem is complicated by more general phenomena: the Supreme Court’s reluctance to specify in greater detail the nature of the probable cause requirement, and the Court’s differing approaches to the significance of state law in federal constitutional doctrine.

Keywords: Probable Cause, Search and Seizure, Fourth Amendment, Marijuana Legalization

Suggested Citation

Cole, Kevin, Probable Cause to Believe What? Partial Marijuana Legalization and the Role of State Law in Federal Constitutional Doctrine (August 20, 2017). Criminal Law Bulletin, Forthcoming; San Diego Legal Studies Paper No. 17-301. Available at SSRN: https://ssrn.com/abstract=3022874

Kevin L. Cole (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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