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Fourth Amendment Follies Coming Soon to Wyoming

Now that marijuana is legal in Colorado under state law for not only medicinal but recreational use by people over 21, a new industry is taking off. As reported earlier this week by the Denver Post

“Commercial real estate tracker Xceligent Inc. estimates that marijuana cultivation and manufacturing facilities in [Denver] occupy about 4.5 million square feet — the equivalent of 78 football fields.”

Wherever you stand on recreational marijuana policy, I’m sure you’ll agree that’s jaw-dropping.  Of course, expansive legalization has led to pot tourism, resulting in an even greater demand than under the state’s old marijuana laws. So, perhaps it’s no surprise at all that Colorado is now cultivating so much “product” and jobs to go along with it. But as marijuana becomes a normal facet of Colorado culture (well, normal legal facet, that is), the conflict between its laws and Wyoming’s will become more pronounced. This conflict may have implications on the Fourth Amendment, which protect Coloradans and Wyomingite alike from unreasonable searches and seizures.

Wyoming maintains draconian marijuana laws in comparison to Colorado, and especially here in Cheyenne (just 100 miles from Denver) the police prepared for interstate conflict long before the new Colorado laws went into effect:

“We have prepared, though, because we’ve seen Colorado going toward this trend,” Cheyenne Police Chief Brian Kozak said [in 2012]. “We’ve trained all 105 officers in drug recognition.”

I can’t help but be amused at the thought of training for marijuana detection.  For those who have not smelled marijuana (that is, had the pleasure of attending a rock concert, public high school, or traversing a ski slope with snowboarders), let me be frank: marijuana has a unique and pungent smell. If you’ve smelled it once, you will never mistake it again.

Under current Fourth Amendment doctrine, police simply have to smell marijuana to attain probable cause to search for the drug. This often happens during traffic stops, and is probably how most successful interdiction of marijuana occurs after it crosses over from Colorado into Wyoming. As a constitutional matter, this is fairly well settled law, but how much longer can the smell of marijuana realistically indicate anything?

Perhaps the most immediate example traces to pot tourism. I recently heard of an incident at Denver International Airport where an individual whose final destination was Wyoming had to go through three different rental cars before the company came up with one that did not smell of marijuana. Like many strong aromas, marijuana smoke permeates clothes and upholstery just as effectively as cigarette smoke, and even a thorough cleaning may not eliminate the smell. Especially if the police were to bring out a drug-sniffing dog, it’s practically guaranteed Zeke will take a seat and indicate the presence of drugs in just about any rental car from Colorado.

I don’t necessarily expect earth-shattering legal cases to arise from this, but as a practical matter Wyoming law enforcement may find itself on the wrong end of bad press if officers continue to use the smell of marijuana as probable cause to search vehicles coming up from Colorado. Even with individuals who actually consume marijuana in Colorado and come to Wyoming with just the smell (and not driving under the influence), the most pungent smell could soon yield nothing more than probable cause to believe the car was in Colorado.

I don’t believe Wyoming’s marijuana laws will change anytime soon, and even then they will not approach Colorado’s amendment. But the Colorado shift is probably here to stay, and Wyoming must be careful not to sacrifice due process in the name of keeping that shift south of our border.

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Thursday, 21 September 2017
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