Colin McCallin Sept. 29, 2016

Victor Zuniga was travelling along the highway in Colorado when he was stopped by a state trooper. He was nervous, as most of us are when pulled over, and the cop smelled raw marijuana, that is, it didn’t smell like he had been smoking, just that there was pot in the car. The officer took this as probable cause for a crime and searched him. When he turned up over a pound of weed and concentrate, Zuniga was arrested and charged with possession and intent to distribute.

The issue here is whether or not marijuana odor, by itself, can be enough to be probable cause for an officer to search your car. Pot is legal in Colorado, so smelling it unburnt in a car should not be an issue, and in a sense you would be correct. While the amount discovered is higher than what is allowed, there is no way for the officer or drug dog to smell how much is in there, and having a legal substance should not be probable cause for an arrest.

So Zuniga and his defense counsel challenged the arrest and the admission of evidence in District Court. They argued the obvious points, that there was no evidence of smoking or impairment, no other indications of a crime and therefore no need to conduct a search.  

A Tale of Two Courts

The district court agreed with the defense, arguing that there is no way the drug sniffing dogs could distinguish between legal and illegal amounts and the arrest was based on speculation not reasonable suspicion.  So Zuniga won this round. However, his victory was brief.

The government appealed the ruling to the state Supreme Court. The Supreme Court came to very different conclusions. Before an arrest can be made, the officer involved is trained to look at what they call the “totality of the circumstances”, and after he or she looks at this big picture, they are expected to make reasonable conclusions as to what is going on and if there is a law violation happening.

In Zuniga’s case, several factors led to the arrest. He and the driver of the vehicle were, according to the police report, extremely nervous, more so than normal.  We will leave it to you to imagine how an officer determines what a “normal” measure of nervousness is.  Zuniga was apparently too helpful and too nice, as though to cover something. Zuniga and the driver had conflicting explanations for being in Colorado, and the smell of the marijuana was very strong in their vehicle which had out of state plates. Taken together, the officer decided a search was needed and called in the dogs that discovered the marijuana.

Based on this big picture, the Supreme Court reversed the District Court ruling. They determined that the smell of marijuana coupled with the other behavior created probable cause to search, and none of the evidence should be suppressed.

So in the end, Zuniga lost his fight to throw out the marijuana evidence in his case.

Why is This Problematic?

While the Supreme Court ruling may seem reasonable on its face, there are a few concerns. First, being extremely nervous and overly helpful are subjective conclusions, even with a trained officer. The officer described the odor as heavy and indicating a large amount. This is also highly subjective and as the District Court already stated, you cannot smell an amount. Second, there is also the question of whether or not the vehicle was unfairly targeted because it was from out of state.  Finally and most importantly, pot is legal in Colorado. Arguing the smell could be connected to illegal activity sounds more like a personal prejudice than a fact. One can argue that this big picture was painted with fairly broad strokes.

What Does This Mean for You

Our advice on pot has always been to follow the law, keep your marijuana sealed when taking it home from the dispensary and don’t actually smoke in your car. If you do transport marijuana, you should never have more than 2 ounces in your car, which is the maximum allowed under Colorado law for a state resident. Zuniga’s mistake was in talking to the police extensively, believing, as many of us do, that if we go along with it there is a chance we can avoid arrest.  We always discourage allowing a police officer to interview you without a lawyer present. Their conflicting stories to the officer when questioned separately made the officer suspicious that they were lying.  So always politely refuse to have a conversation or answer any questions beyond explaining who you are and why you are where you are. Keep it simple, spare and brief.

What this ruling reveals to all of us, however, is that there continues to be a great deal of stigma around pot and pot use, even when its possession appears to be legal on its face. Since there are some illegal activities that involve marijuana, the courts are still willing to consider marijuana odor a factor in the totality of your circumstances, and that makes anyone who uses subject to extra scrutiny. While the state has made marijuana use legal for medical and recreational reasons, it will take time for attitudes around pot to evolve.