Marijuana Legalization and Pretextual Stops

Abstract

Not long ago, marijuana policy was almost exclusively the domain of criminal law and public health specialists; now it touches on nearly every area of the law. The federal ban on marijuana means that state-legal businesses face unique challenges on a host of issues, from trademarks to taxes. The state-federal conflict also continues to raise tricky constitutional problems. Even as business and federalism-based marijuana law issues have multiplied, however, marijuana policy remains primarily a criminal justice concern for now. In 2014, there were 620,000 arrests for marijuana possession alone — well off the high-water mark of approximately 775,000 arrests in 2007, but still a little under half of all drug possession arrests nationwide. One of the main arguments in favor of marijuana legalization, of course, is that arresting so many marijuana offenders is a poor use of law enforcement resources. Not surprisingly, in the states that have legalized marijuana, marijuana arrests have plummeted. The immediate impact of this is clear: criminal justice resources previously devoted to catching and processing marijuana offenders can be put to different uses. But is it possible that removing marijuana from the criminal justice system will also affect policing tactics? The impact of the drug war on Fourth Amendment doctrine has been well documented. The war on drugs led to the proliferation of drug-sniffing dogs and the rise of “pretextual stops,” in which the police stop someone ostensibly to issue a traffic ticket but with the ulterior motive of fishing for drugs. This paper asks how marijuana legalization might influence search and seizure doctrine and practice. If the drug war gave rise to a new era of invasive policing, is it possible that marijuana legalization will have the opposite effect? Specifically, could legalization take away some of the legal tools and policing incentives that fuel pretextual stops? To date, the relationship between state marijuana legalization and the Fourth Amendment has received little attention in comparison to issues like federalism or taxes. This essay begins to help fill this gap by examining the how marijuana legalization laws might impact pretextual stops.

Keywords: marijuana, medical marijuana, policing, pretext stops, pretextual stops, racial profiling, fourth amendment, search and seizure, criminal law, drug policy