Can a State Police Officer Search a Car Based on Probable Cause of a Federal Marijuana Crime?

A fun case about cross-enforcement of the Fourth Amendment now before the Ninth Circuit.

|The Volokh Conspiracy |

On Monday, March 3rd, a panel of the Ninth Circuit is going to hear argument in a case raising one of my favorite hypotheticals about cross-enforcement of the Fourth Amendment.  The relevant issue in the appeal, United States v. David Martinez, No. 18-10498, is this: Can a police officer in a state that has decriminalized marijuana possession constitutionally justify a search of a car based on probable cause to believe marijuana is in the car as prohibited by federal law?   In other words, can a search from an officer employed by the state look to federal criminal law for the probable cause needed to justify the search?

This is an example of what I have called cross-enforcement, a claim that a law enforcement officer employed by one government should be able to search or seize based on a violation of a different government's law.  Indeed, my article on the topic begins with this question:

Imagine you are a state police officer in a state that has decriminalized marijuana possession. You pull over a car for speeding, and you smell marijuana coming from inside the car. Marijuana possession is legal under state law but remains a federal offense. Can you search the car for evidence of the federal crime even though you are a state officer?

It turns out that courts are divided on the question.  And as far as I know, Martinez is the first federal appeal specifically raising how cross-enforcement might work in the specific context of marijuana decriminalization.  Given that, I thought I might explain the basic facts of the case and provide the relevant excerpts from the briefs filed in the case. Oral argument is scheduled for March 3rd in San Francisco.  Under Ninth Circuit practice, the panel has not yet been announced.

I should be clear that there are reasons why the Ninth Circuit might not reach this issue in its decision.  But the court might reach it, and it's a really fun legal issue.  So here are the details for those interested.

I.  The Facts

I'll present a simplified version of the facts just to focus on the cross-enforcement question.  A San Benito County Deputy Sheriff pulled over an SUV for a traffic violation.  As the Deputy approached the car, he "smell[ed] a strong odor of marijuana emanating from the passenger compartment of the vehicle."  The driver, Martinez, couldn't produce a driver's license or proof of insurance.  The Deputy asked Martinez "how much bud" was in the SUV. Martinez responded: "Honestly, I have like a little sack and a little blunt. I haven't even been smoking it either."

The Deputy asked Martinez if there was lots of marijuana or anything illegal in the car. Martinez consented to a search of the console area of the car to show the Deputy that there was only a little bit of marijuana there.  The Deputy found marijuana in the center console, but when in the car the Deputy noticed that the console seemed loose, as if there was something underneath it.  He pulled up the console bottom and found a loaded Beretta .40-caliber pistol underneath.

Martinez was placed under arrest.  He was later charged with unlawful possession of firearms and ammunition following a domestic-violence conviction.  A later search of his home, based in part on his post-arrest statements, yielded many more guns.

II. The Legal Question, and the District Court Proceedings

One of the legal questions raised in the case is whether the Deputy's searching the car was permitted under the automobile exception.  Under the automobile exception, probable cause to believe that contraband will be found in a car permits a search of wherever in the car the contraband may be found.

The government argued in the district court that the automobile exception applied for two reasons.  First, even though California has decriminalized simple marijuana possession, there was still probable cause sufficient to justify probable cause under California law based on the specifics of how California's marijuana law worked.  Second, even if there was no probable cause under state law, probable cause existed under federal law.  Federal law still has a broad prohibition on marijuana possession, and the smell of drugs (plus later the discovery of the drugs in the console) permitted a search for marijuana under federal law that justified removing the console bottom.

Judge Koh concluded in a long and detailed opinion that the automobile exception applied based on California state law.  She did not reach the question of whether the search could be authorized under federal law.

Notably, Judge Koh also did not reach the factual question of whether Martinez had voluntarily consented to the search, and if so, how far that search had extended. I would think that the consent included the search of the console.  But it seems quite plausible that the scope of the consent did not include removing the console tray. Either way, the consent issues weren't resolved by the district court.  The court focused this part of the case only on the automobile exception.

III.  The Arguments of the Parties

On appeal to the Ninth Circuit, the parties repeat their arguments about whether California state law permitted the search under the automobile exception. It's entirely possible that the Ninth Circuit will rule on that basis. But the parties also dispute whether federal law permitted the search in the event state law did not.

In his opening brief, Martinez offers the following argument for why the automobile exception cannot be based on probable cause under the federal marijuana laws:

Although marijuana remains illegal under federal law, federal law is not applicable here because the validity of a search by a state officer based on state law must comply with state law. See, e.g., United States v. $186,416.00 in U.S. Currency, 590 F.3d 942, 948 (9th Cir. 2010); O'Neal v. Johnson, 2017 WL 416128, *9 (E.D. Cal. 2017) (arrest by state officer "needed to be supported by probable cause based on the elements of those state laws"); Commonwealth v. Craan, 469 Mass. 24, 34 (Mass. S.Ct. 2014) ("[f]ederal law does not supply an alternative basis for investigating possession of one ounce or less of marijuana").

The government has argued that the search was permissible because it was justified under federal law. The government is incorrect. The district court did not address this issue, but instead relied on state law to conclude that the search was valid. ER 11.

In $186,416 in U.S. Currency, state officers seized currency from a medical marijuana dispensary pursuant to a state warrant. The officers omitted relevant facts from the warrant affidavit which supported the conclusion that the dispensary was in compliance with state law. Id. at 947- 48. This Court found that the omission of those facts rendered the search illegal due to "the absence of probable cause under state law." Id. at 948.

This Court further found that state law regarding the determination of probable cause was controlling. As the Court explained, it did not matter that "there may have been probable cause to search [the dispensary] for a violation of federal law" because "[t]he LAPD, a city agency, never initiated the process of seeking a federal search warrant from a federal magistrate or indicated that it was pursuing a violation of federal law." Id. Here as well, Deputy Creager solely relied on state law grounds for his conduct, and never suggested that he was investigating federal law. ER 143.

Indeed, the courts in both O'Neal and Craan have rejected the precise argument previously made by the government here, and concluded that a search based on marijuana-related conduct could not be based on federal law where the observed conduct was not illegal under state law. O'Neal, 2017 WL 416128, *9; Craan, 469 Mass. at 34.

Because Deputy Creager relied on state law, the search must be justified on that basis. United States v. Ross, 456 U.S. 798, 823 (1982) (under automobile exception, "only prior approval of the magistrate is waived; the search otherwise [must be such] as the magistrate could authorize"); Abbot v. Sangamon County, 705 F.3d 706, 715 (7th Cir. 2013) ("[t]he existence of probable cause or arguable probable cause depends, in the first instance, on the elements of the predicate criminal offense(s) as defined by state law").

Here's the counter-argument of the United States offered in its brief:

Martinez claims that after California legalized small amounts of marijuana with Proposition 64, the odor of marijuana—no matter how strong—can no longer contribute at all to probable cause for a vehicle search, as no officer can presume that the marijuana is contraband under state law.

But this Court has "unqualifiedly held" that "'evidence seized in compliance with federal law is admissible without regard to state law,' even when state authorities obtained the evidence without any federal involvement." United States v. Cormier, 220 F.3d 1103, 1111 (9th Cir. 2000) (citation omitted). "'[R]equiring federal district courts to look to state law when determining the admissibility of evidence obtained in accordance with federal law would hamper the enforcement of valid federal laws and undermine the policy favoring uniformity of federal evidentiary standards.'" Id. (citation omitted).

Whether a search or seizure is reasonable under the Fourth Amendment is a question of federal law and does not depend "on the law of the particular State in which the search occurs." California v. Greenwood, 486 U.S. 35 (1988); see, e.g., Virginia v. Moore, 553 U.S. 164, 170–76 (2008); United States v. Brobst, 558 F.3d 982, 989–90 (9th Cir. 2009); United States v. Becerra-Garcia, 397 F.3d 1167, 1174 (9th Cir. 2005). There are two limited exceptions to this rule—for inventory searches and searches incident to arrest—but neither applies here. Cormier, 220 F.3d at 1111; United States v. Dauenhauer, 745 F. App'x 41, 42 (9th Cir. 2018).

Martinez relies on United States v. $186,416.00 in U.S. Currency, 590 F.3d 942 (9th Cir. 2010), a civil-forfeiture decision. AOB23. There, police officers obtained a state search warrant for a medical marijuana dispensary in Los Angeles but failed to inform the issuing judge of facts suggesting that the dispensary complied with state law, which led to suppression under a Franks analysis. 590 F.3d at 948. That case says nothing about a warrantless search under the Fourth Amendment's automobile exception and has no bearing here.

This search satisfied federal constitutional standards. Under the Fourth Amendment's "flexible, all-things-considered approach," Harris, 568 U.S. at 244, there was probable cause to believe the SUV could contain contraband or evidence of a crime. Marijuana remains partly criminalized in California but wholly criminalized under federal law. 21 U.S.C. § 844. And the smell of marijuana alone provides probable cause for a vehicle search. E.g., United States v. Johns, 469 U.S. 478, 482 (1985); Johnson, 913 F.3d at 801; United States v. Solomon, 528 F.2d 88, 91–92 (9th Cir. 1975); United States v. Barron, 472 F.2d 1215, 1217 (9th Cir. 1973); United States v. Leazar, 460 F.2d 982, 984 (9th Cir. 1972); ER8.

Whether Deputy Creager subjectively based his probable-cause assessment on federal law is irrelevant. An officer's "subjective thoughts play no role in the Fourth Amendment analysis"; that he may have "acted on one rationale would not foreclose the government from justifying the search by proving probable cause." United States v. Ramirez, 473 F.3d 1026, 1030–31 (9th Cir. 2007) (cleaned up); see Johnson, 913 F.3d at 799. Deputy Creager's subjective legal intentions thus do not affect whether the vehicle search satisfied federal law, or whether evidence is admissible in this federal prosecution. See Arkansas v. Sullivan, 532 U.S. 769, 771–72 (2001); Whren v. United States, 517 U.S. 806, 813 (1996).

Finally, here's the response Martinez offers in his reply brief:

In assessing the legality of the vehicle search, the government argues that the Court should ignore California's legalization law, and should instead rely on federal law, under which marijuana remains "wholly criminalized."AB 21-23.

The government ignores the decisions cited by Mr. Martinez which concluded that federal law was not controlling on this issue. O'Neal v. Johnson, 2017 WL 416128, *9 (E.D. Cal. 2017) (arrest based on state law depends on elements of state law); Craan, 469 Mass. at 34 (decriminalization initiative "must be read as curtailing police authority to enforce the Federal prohibition of possession of small amounts of marijuana")).

The government fails to meaningfully distinguish United States v. $186,416.00 in U.S. Currency, 590 F.3d 942, 948 (9th Cir. 2010), in which this Court held that the search of a marijuana dispensary violated the "Fourth Amendment right against unreasonable searches and seizures, in light of the absence of probable cause under state law."

The government claims that $186,416.00 "has no bearing here" because it did not involve the automobile exception. AB 22. To the contrary, the Court's determination that the search was illegal under Franks involved application of the same Fourth Amendment principles regarding probable cause.

Citing United States v. Cormier, 220 F.3d 1103, 1111 (9th Cir. 2000), the government argues that state law is only controlling in the context of inventory searches and search incident to arrest. AB 21-22. But Cormier recognized that state law will be relevant "when the constitutional test for determining the legality of a search incorporates state law." Cormier, 220 F.3d at 1112. The decision in $186,416.00 did not involve an inventory search or search incident to arrest.

A search conducted by a state officer, for a purported violation of state law, under the automobile exception, requires the search to be one that the magistrate could authorize under that state law. United States v. Ross, 456 U.S. 798, 823 (1982). This justifies "incorporation of state law" for the same reasons identified in Cormier. Cormier, 220 F.3d at 1111; Welsh v. Wisconsin, 466 U.S. 740, 754 (1984) (whether Fourth Amendment authorizes warrantless in-home arrest for minor offense depends on classification of offense under state law).

The government also relies on inapposite authorities involving the reasonableness of searches and arrests committed in violation of state procedural requirements, or in violation of more expansive state privacy rights. AB 21 (citing Virginia v. Moore, 553 U.S. 164, 176 (2008) (state law requiring summons rather than arrest); California v. Greenwood, 486 U.S. 35, 43-44 (1988) (state law regarding expectation of privacy)).

Indeed, in United States v. Becerra-Garcia, 397 F.3d 1167, 1171-72 (9th Cir. 2005), the Court distinguished between procedural rules, which were not determinative, and the "criminal trespass laws of the tribal nation."

Finally, the government argues that Deputy Creager's sole reliance on state law is not relevant, AB 22-23, but again ignores $186,416.00, which found state law controlling in part because the state agency never "indicated that it was pursuing a violation of federal law." 590 F.3d at 948. The authorities cited by the government instead address whether "pretext" stops were lawful based on known facts, even though officers had ulterior motives. See, e.g., United States v. Ramirez, 473 F.3d 1026, 1030-31 (9th Cir. 2007) ("collective knowledge" doctrine); Whren v. United States, 517 U.S. 806, 813 (1996); Arkansas v. Sullivan, 532 U.S. 769, 771-72 (2001).

Such a great legal question.  And as I explained in my 2018 article, courts are just all over the map on Fourth Amendment cross-enforcement.

My own view, offered in the article, is that the answer should depend on whether the federal government has authorized this officer or state officers generally to search and seize to enforce the federal marijuana laws.  Fourth Amendment law permits searches based on probable cause because the probable cause is thought to reflect the government's legitimate interest in enforcement of its law that is advanced by the search. It's the federal government's law, and therefore the federal government should get to decide who can advance its legitimate interest in the law's enforcement and who cannot.

I'm not aware of a federal decision or statute authorizing this officer or state officers generally to enforce the federal marijuana laws.  So under my approach, I would say that the Deputy could not justify a search based on probable cause to believe there was evidence of a federal marijuana violation in the car.

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  1. What all this shows is marijuana is way over-regulated. – Science and widespread experience have shown marijuana has no significant harms. The only regulation it needs is to prohibit sales to children and provide basic sanitation, as we do for all produce.

    1. While I agree with your conclusion, it’s only because adults are entitled to do things that have significant harms. Because “no significant harms” is resting pretty heavily on the subjective judgement of what level of harm is “significant”.

      1. Please name what you believe to be marijuana’s greatest harm.

        1. It makes you dumber. Literally. Damage to the hippocampus results in long term deficits in memory, and lower IQs

          1. That’s completely false. – Investigators affiliated with the University of Pennsylvania, Perelman School of Medicine and with the Children’s Hospital of Pennsylvania reviewed data from 69 separate studies published between 1973 and 2017 involving 8,727 subjects (2,152 frequent or heavy users and 6,575 controls).

            Researchers reported no significant long-term deficits in memory, attention, or other aspects of cognitive functioning that could be independently attributed to cannabis use, regardless of subjects age of initiation. These findings are in contrast to similar studies assessing the impact of alcohol use and other controlled substances on cognition, which “have shown medium to large effect sizes.”

            Authors concluded: “Associations between cannabis use and cognitive functioning in cross-sectional studies of adolescents and young adults are small and may be of questionable clinical importance for most individuals.

            Furthermore, abstinence of longer than 72 hours diminishes cognitive deficits associated with cannabis use. [R]esults indicate that previous studies of cannabis youth may have overstated the magnitude and persistence of cognitive deficits associated with marijuana use.”

            Commenting on the study’s findings, NORML Deputy Director Paul Armentano said: “These conclusions are consistent with those of prior studies – in particular, recent longitudinal twin studies reporting that cannabis use is not independently associated with any residual change in intelligence quotient or executive function.”

            “These findings, combined with other recent studies reporting that cannabis exposure appears to have minimal adverse impact on brain morphology — particularly when compared to the dramatic effects of alcohol —dispute the long-standing ‘stoner-stupid’ stereotype.”

            “These findings should help to assuage fears that cannabis’ acute effects on behavior may persist long after drug ingestion, or that they may pose greater potential risks to the developing brain.”

            1. So, that’s your argument for no negative effects? It only makes you stupid for three freaking days after you use it?

              Look, most people aren’t all that smart to begin with, voluntarily doing something to make yourself even stupider is, well, stupid.

              1. You argued that marijuana does “long-term” damage to the brain. — The research I present shows it clearly doesn’t. — Now you want to change your argument on the sly.

                The 72 hour period is to remove all detectable effects, no matter how small or unnoticeable. – The effects of marijuana are 99 percent gone after 3 to 5 hours. And you wake up with no hangover.

                At NO point in the process of consuming marijuana is the effect on the brain anywhere near that of alcohol.

                On the contrary, research shows marijuana gives the brain more stamina, helps prevent and treat Alzheimer’s and similar brain disease, and actually stimulates the production of new brain cells.

                Every person who chooses near harmless marijuana over addictive, very harmful alcohol, improves their health tremendously – as well as the lives of their family and community.

                1. He didn’t say that. That was Armchair Lawyer. Learn how threads work before getting sanctimonious.

                  1. Well, we could blame it on the memory issues from the marijuana use….

                    But I joke.

                  2. Brett said:

                    While I agree with your conclusion, it’s only because adults are entitled to do things that have significant harms. Because “no significant harms” is resting pretty heavily on the subjective judgement of what level of harm is “significant”.

                    Long term, significant, little difference, both refuted.

                  3. You’re right. – That’s what I get for posting so late in the evening. – But the point still stands. – Brett is changing the point of contention in the middle of the thread. — I sufficiently addressed his new point, as shallow as it was.

          2. Also it causes some degree of lung damage if you smoke it. Basically inhaling smoke of any kind isn’t healthy.

            But the effects on your brain, which actually show up in brain imaging studies, are the ones I’d be most concerned about. At the very least, this isn’t a habit you should pick up until after your mid 20’s, when your brain structure is fully formed.

            1. I’ve already shown there is no lasting, negative effect of marijuana on the brain.

              You are throwing more assumptions (propaganda?) — The country’s leading researcher of marijuana and lung disease, UCLA’s Dr. Donald Tashkin, conducted investigations over 30 years, initially believing there must be a causal relationship. But he finally concluded that smoking marijuana does NOT cause cancer or ANY other serious disease.

              Tashkin said:

              “We hypothesized that there would be a positive association between marijuana use and lung cancer, and that the association would be more positive with heavier use. What we found instead was no association at all, and even some suggestion of a protective effect.”

              If consumers want to avoid even the minor irritation from smoke, they can partake with edibles or by vaporizers.

                1. If this is the report I remember it has a striking flaw: it relies heavily on schizophrenia and similar psychoses. Sadly people who will develop those psychoses are pretty much doomed to them anyway; it’s difficult to separate them like this when it’s just a question of time when we don’t even know the “correct” answer. People who will develop those psychoses are also more likely to be using cannabis like others of their socio-economic backgrounds and because of cultural reasons (like the belief that cannabis helps with the condition).

                  It’s certainly possible and good work is now being done with these psychoses but I think we’ll need more groundwork to be done before reports like these can be properly understood.

                  1. The truth is a lot more nuanced and complicated. And fact of the matter is, occasional (IE once a month) marijuana use isn’t going to affect your long term health notably, especially as an adult.

                    Chronic, long-term daily use on the other hand is more severe. Beyond the simple effects (IE, smoking something daily will eventually cause cancer), there are the concerns about various psychoses. Now, your point which causes which (IE Schizos taking Marijuana to help them rather than Marijuana causes Schizophrenia) is well taken. The simple truth is, there isn’t enough evidence to comprehensively, 100% say one way or the other.

                    However, what I will say is chronic, long term use of neurotransmitter altering substances, especially as a developing adolescent, is bound to have long term effects.

                    1. You are just spouting opinion. – NO amount of marijuana consumption causes the problems you contend. – Consider the millions of medical marijuana patients that consume copious amounts every day. There are ZERO reports of any side effects from them.

                      The research is clear, as I have shown. No amount of marijuana has any lasting effect on the brain, developing, or otherwise. – That’s not to say children should consume marijuana. They shouldn’t, except for medical needs as a doctor recommends. Recreational consumption is an ADULT activity. Children are not mature enough to handle the experience, as with a thousand other adult activities.

                    2. Sigh.

                      Consume enough marijuana…and you die. Straight out death. I consider that a “side effect”

                      https://www.rehabs.com/pro-talk/fatal-marijuana-overdose-is-not-a-myth/

                    3. lol — The bogus “treatment” quacks put out that kind of misinformation. They get the majority of their “patients” ordered to them from the courts. Not for any problem a person has with marijuana, but simply for being “caught.”

                      They are just twisting statistics, a favorite prohibitionist pastime. – An alleged “18” deaths out of a marijuana consuming population of 30 to 40 million would be so insignificant, it would fall within the margin of error.

                      Most telling is they did not cite even one of these alleged “marijuana deaths.” — Because they don’t exist.

                      Every few years, a claim of a marijuana death gets into the news. But every time, upon examination, the information was flawed or false.

                      The record stands as it always has. — NO ONE has ever died from consuming marijuana in all of recorded history. Real researchers say it’s impossible to consume enough marijuana at one time to cause death. – You would have to consume at least a third of your body weight in a half hour.

                      Get real.

                2. That’s not a study. It’s a skewed review of other people’s research. — The alleged marijuana/schizophrenia connection stemmed from an observation that a certain percentage of schizophrenic patients consumed marijuana. Prohibitionists jumped on the idea that showed marijuana caused schizophrenia, and the media belched it out.

                  It turns out, some schizophrenic patients were actually self-medicating with cannabis. Further research has shown most patients obtain effective relief, while a few get aggravation of their symptoms.

                  But prohibitionists love this false causation idea so much they continue to cling to it, as you do.

                  On the contrary, research shows marijuana helps prevent the deadly swelling from brain trauma, gives the brain more stamina, helps prevent and treat Alzheimer’s and similar brain disease and actually stimulates the production of new brain cells.

                  1. “Marijuana… actually stimulates the production of new brain cells”.

                    Uh huh. And if you stick this jade egg up your vagina you’ll get magical benefits and access unknown sexual powers.

                    At some point you went beyond plausability to utter nonsense. This is just an indication of that.

                    1. I can always back up my points with the facts and relevant research. — You should try that some time.

                      The country’s top expert on marijuana and marijuana policy, Paul Armentano, explains:

                      “Study turns pot wisdom on its head,” pronounced the Globe and Mail in October. News wires throughout North America and the world touted similar headlines — all of which were met with a monumental silence from federal officials and law enforcement. Why all the fuss? Researchers at the University of Saskatchewan in Saskatoon found that the administration of synthetic cannabinoids in rats stimulated the proliferation of newborn neurons (nerve cells) in the hippocampus region of the brain and significantly reduced measures of anxiety and depression-like behavior. The results shocked researchers — who noted that almost all other so-called “drugs of abuse,” including alcohol and tobacco, decrease neurogenesis in adults — and left the “pot kills brain cells” crowd with a platter of long-overdue egg on their faces.”

                      “While it would be premature to extrapolate the study’s findings to humans, at a minimum, the data reinforce the notion that cannabinoids are unusually non-toxic to the brain and that even long-term use of marijuana likely represents little risk to brain function. The findings also offer further evidence that cannabinoids can play a role in the alleviation of depression and anxiety, and that cannabis-based medicines may one day offer a safer alternative to conventional anti-depressant pharmaceuticals such as Paxil and Prozac.”

                      Cannabis & Neuroprotection

                      “Not only has modern science refuted the notion that marijuana is neurotoxic, recent scientific discoveries have indicated that cannabinoids are, in fact, neuroprotective, particularly against alcohol-induced brain damage. In a recent preclinical study — the irony of which is obvious to anyone who reads it — researchers at the US National Institutes of Mental Health (NIMH) reported that the administration of the non-psychoactive cannabinoid cannabidiol (CBD) reduced ethanol-induced cell death in the brain by up to 60 percent. “This study provides the first demonstration of CBD as an in vivo neuroprotectant … in preventing binge ethanol-induced brain injury,” the study’s authors wrote in the May 2005 issue of the Journal of Pharmacology and Experimental Therapeutics. Alcohol poisoning is linked to hundreds of preventable deaths each year in the United States, according to the Centers for Disease Control, while cannabis cannot cause death by overdose.”

                      “Of course, many US neurologists have known about cannabis’ neuroprotective prowess for years. NIMH scientists in 1998 first touted the ability of natural cannabinoids to stave off the brain-damaging effects of stroke and acute head trauma. Similar findings were then replicated by investigators in the Netherlands and Italy and, most recently, by a Japanese research in 2005.”

                    2. “synthetic cannabinoids”

                      Stop interpreting studies you don’t understand and then saying they apply to marijuana.

                    3. You foolishly discount research using synthetic cannabinoids. – Try learning something about scientific method.

                  2. FYI.

                    THC kills nerve cells. Flat out death. At concentrations of 500 nM and higher. This isn’t controversial. It’s known.
                    https://www.jneurosci.org/content/18/14/5322

                    You sound like a Jade Egg promotes sexual vitality fool when you start saying “Oh, it promotes brain cell growth”.

                    1. I refer only to the most authoritative research. Again, Paul Armentano is the generally recognized U.S. expert on marijuana science and policy.

                      You throw out: >>>”Treatment of cultured neurons or hippocampal slices with THC”

                      Oh, brother. – Of course, there is a mountain of junk science on marijuana out there.

                      I don’t know how “cultured” my neurons and I avoid having my hippocamus sliced? But they’re in great shape, and I’ve been consuming the far safer alternative to alcohol for half a century.

                      The preponderance of the real research shows marijuana doesn’t harm the brain or any other part of the body.

                      The rabidly prohibitionist agency NIDA has been desperately funding research for decades, looking for some significant harm of marijuana to prop up the fraudulent prohibition.

                      In all that time, they have not found even ONE. If they had, they, the DEA, the ONDCP, etc. would be shouting it from the roof tops and it would be on everyone’s tongue.

                      Instead:

                      [Crickets chirping]

                      So, ironically, even NIDA has given marijuana a clean bill of health!

                      As the DEA’s own administrative law judge, Francis Young, concluded after an exhaustive review of the evidence:

                      “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man.”

                    2. So tell me, what are you qualifications to dismiss hundreds of studies as junk science? Why do you use an appeal to authority for a fucking journalist and not actual MDs with decades of research and experience? Oh right, you dismiss it out of hand by claiming that NIDA being imperfect means their research is bunk science despite being peer reviewed. Yeah, there’s just thousands of MDs, PHDs, and MDPHDs doing research for them lying through their teeth because they’re all evil statists who want to stop you from enjoying some mary jane.

                      Go be a climate denier somewhere else.

              1. No, you showed one study. One study, in a field of thousands, is not proof. It’s part of the ongoing research and discourse about marijuana. There are many troubling findings and while those risks are not valid reasons to ban use, that doesn’t mean we need to be absolutists about the safety of marijuana. Much more research is needed and that’s why it is so important that it be descheduled and legalized federally.

    2. The same can be said for the firearm in this case.

  2. The ‘science’ of recreational drugs is corrupt by politicization. Driving is the prime example, worsened by every sort of intoxication.

    1. No. Science is not corrupted. — That sounds like a Trumpian attack on the truth-tellers. You probably don’t believe we are suffering a climate emergency either.

      You also make false assumptions. – Marijuana is not alcohol. The preponderance of the research shows marijuana consumption is NOT a significant cause of auto accidents.

      In 2015, the U.S. Department of Transportation’s National Highway Traffic Safety Administration, found that while drunken driving dramatically increased the risk of getting into an accident, there was no evidence that using marijuana heightened that risk.

      In fact, after adjusting for age, gender, race and alcohol use, the report found that drivers who had recently consumed marijuana were no more likely to crash than drivers who were not under the influence of any alcohol or drugs.

      Studies show medical marijuana law states have lower traffic fatality rates compared to states that haven’t legalized.

      1. I call BS here, especially on the DoT study. There is no way that the DoT said that actively using marijuana doesn’t increase the risk of getting into a car accident.

        1. I’ll let John Thomas defend his point, but I am familiar with a 2017 report by the Department of Transportation

          https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/812440-marijuana-impaired-driving-report-to-congress.pdf

          That highlights many of the difficulties of establishing if and to what degree THC leads to increased risk of accidents, even pointing to some evidence that marijuana users are more likely to drive slower and more cautiously knowing that their judgments and reaction times are impaired. The studies are inconclusive. For example, “The Li study estimated the increased risk of crash involvement for drivers using marijuana at 1.83 times that of drug-free drivers, while the Romano study found no increased risk of crash involvement for those drivers testing positive for THC.”

          1. This basic problem is one of accurately determining whether someone is actively under the influence of THC, versus having smoked it a day (or week) ago. Unlike ethanol, THC stays in the body a very long time (days to weeks), long after its active effects are gone. So, if you average in everyone who has smoked THC in the last month (but isn’t under the influence), it averages out the people who just smoked up and drive. And if you smoked up 2 weeks ago, you’re fine to drive.

            But, make no mistake, actively smoking up to the point of inebriation, then driving is dangerous, and leads to accidents. When this point is grossly misinterpreted, it leads to vast misunderstandings and danger.

            Those states which have legalized weed have also seen a spike in its use…and in accidents.

            https://www.nbcnews.com/business/consumer/legalized-marijuana-linked-sharp-rise-car-crashes-n921511

            1. That’s just some of the mountain of prohibitionist yellow journalism. Correlation does not equal causation. – The article itself disclaims:

              >>>”The new reports do not prove there’s a direct risk caused by the use of marijuana among motorists”

              And I have amply shown why marijuana presents no significant risk.

        2. That’s not how debate works. – I present facts and research. Then, you try to demonstrate some weakness in the points. — You don’t just get to say, “I call BS,” “no way,” etc.

          That’s juvenile. I will spoon-feed you a response to your zero-basis objection, but I won’t to it again. – Try a little research.
          From the NHTSA web site:

          >>>”NHTSA’s “Crash Risk” Study — This case control crash risk study is the first large-scale study in the United States to include drugs other than alcohol. It was designed to estimate the risk associated with alcohol- and drug-positive driving. Virginia Beach, Virginia, was selected for this study because of the outstanding cooperation of the Virginia Beach Police Department and other local agencies with our stringent research protocol…”

          “When the odds ratios were adjusted for demographic variable of age, gender, and race/ethnicity the significant increased risk of crash involvement associated with THC disappeared. The adjusted odds ratio for THC positive drivers was 1.05 (95% Confidence Limit of 0.86 – 1.27).”

          “This adjusted odds ratio was not statistically significant. A final adjustment was made for the presence of alcohol. When both demographic variables and the presence of alcohol were taken into account, the odds ratio for THC declined further to 1.00 (95% Confidence Limit of 0.83 – 1.22).”

          “This means there was no increased risk of crash involvement found over alcohol or drug free drivers.”

          1. “I call BS” because it’s just absurdly not true.

            “THC positive” is not “Currently under the influence of THC”.

            THC stays at detectable levels in the body for a very long time (days to weeks). From the lead of the story “A positive result for a drug does not necessarily mean the driver was impaired at the time of testing, only that the drug was present in the body.”

            Further from the report.

            “The authors found that driving under the influence of cannabis was associated with a significant increase in risk of motor vehicle collisions compared with drivers who had not used cannabis”

            There is simply no way you’re going to convince me that if someone is high as a kite while smoking marijuana that they aren’t at increased risk of having an accident while driving.

            1. I’ve read the original report and the way it’s reported is ridiculous. There’s a 1.25 odds ratio between THC and crashes with a p-value of 0.01 before their “adjustments”. That’s very statistically significant (0.01 would be a wonderful report in pretty much every situation) but they discard that through a demographic adjustment of the odd ratio without any indication of how they did so. Was it through the control group, through national data, or something else? If it wasn’t the control group, did that data itself give accounting of high vs. not high individuals? It’s a big no-no to do an otherwise unneeded adjustment on an already significant result when that result is what they set out to find. It’s just bad p-hacking but for the insignificant result. Whatever they did, it almost certainly wasn’t correct: they didn’t find that any drug besides alcohol significantly increased the odds of crashing with any confidence, even sedatives.

              This is all besides the salient fact, which you also pointed out, that drug tests don’t show current impairment – they show use within the last few weeks or days for most drugs, while we metabolize alcohol much more quickly.

              1. In other reports, marijuana is assigned a 1.8 crash odds ration while marijuana recieved an 18.xx to one! – That means alcohol’s risk of crash is NINE TIMES that of marijuana. — Other drugs, like strong cold medicines, cocaine, and other illegal drugs fall somewhere on the spectrum between marijuana at virtually no risk to the carnage level of alcohol’s risk.

                1. Tell you what. Why don’t you give your pilot a tin of pot brownies, and tell him to snack while flying you somewhere. Then tell me how “safe” it is.

                  Just make sure everyone else is off the plane.

                  1. Prohibitionists always resort to such nonsensical scenarios. – You might as well ask “Why don’t you give your pilot a bottle of Tequila and tell him to drink up while flying you somewhere?”

                    The answer is we rely on professionals to abstain from ALL recreational drugs while working – and they do.

                    Just to address your ridiculous argument, I’d MUCH rather fly with a pilot who has consumed marijuana than with one that has consumed alcohol. — It’s exponentially safer.

                    1. I’m not the one saying marijuana’s basically harmless. You are.

                      I take it back. Don’t endanger the pilot. Go on your own. Over the ocean, so you don’t endanger anyone else.

                    2. lol – You can’t even admit your scenario broke down under the mildest scrutiny. You say nothing to detract from the points I made.

                    3. His scenario is completely valid.

                      What you did, in effect, is deny the Greenhouse Gas Theory on the basis of flawed climate models. Sure, maybe there are some modeling errors. Maybe the exact opposite is true. But did that address the literal, physical science of how gases operate in the atmosphere? Did all these statistical studies even try to address how THC works in the bloodstream and how it literally, not as a matter of correlation, but as a cause/effect relationship, impairs motor skills?

                      You tried to shift goalposts with the tired and true “it’s less dangerous than alcohol” argument, but that’s not an argument to say marijuana is safe. That’s an argument to say DUI should cover weed and THC concentration thresholds should be set so that way you don’t get charged for something that should be legal.

                      All substances should be legal, regardless of risk. Risk is not a valid reason for drugs of any kind to be illegal, unless we’re talking about some kind of weaponized virus that could spread to others and that cannot be handled responsibly.

              2. Sorry for the error. — In other reports, marijuana is assigned a 1.8 crash odds ration while alcohol recieved an 18.xx to one! – That means alcohol’s risk of crash is NINE TIMES that of marijuana. — Other drugs, like strong cold medicines, cocaine, and other illegal drugs fall somewhere on the spectrum between marijuana at virtually no risk to the carnage level of alcohol’s risk.

  3. Ok, this cracks me up. We have a sanctuary state – California – currently suing the Feds because they don’tr want to be commandeered into enforcing federal immigration laws. OTOH, it suits them just fine to enforce other federal laws when they perceive that enforcement to be in their interest (I assume they fined the shit out of Martinez and collected a ton of money).

    The cognitive dissonance is formidable.

    1. Nah, there’s no conflict here: The point of non-commandeering is that the states have a choice.

      I do wonder about US v Arizona. If it’s current federal policy to not enforce federal marijuana laws in states where pot is legal, then by the reasoning of US v Arizona, wouldn’t that imply that the states can’t, either?

      1. Seems the conflict is more ethical than legal. It being government in California, ethics gets short shrift.

        1. Where’s the ethical conflict? California likes one federal legal regime, not another.

    2. This is a federal prosecution for felon in possession. California isn’t enforcing anything.

      1. The federal marijuana law is an a$$. It was fraudulently enacted and is as viciously oppressive and unjust as the U.S. laws that created and maintained genocide, slavery and discrimination.

        This is one of the reasons we are ending marijuana prohibition in the states – to smash the fraudulent, federal persecution.

        1. Okay? This guy isn’t being prosecuted for Marijuana possession. He’s being prosecuted for being a DV offender in possession of a bunch of guns.

          1. So? – In case you forgot what this article – and discussion – is about, the title is “Can a State Police Officer Search a Car Based on Probable Cause of a Federal Marijuana Crime?”

            So my comment is germane. A fraudulent, arbitrary, oppressive law does not establish a basis for anything, let alone “probable cause” for life-shattering encounters with predatory, corrupt law enforcement.

  4. There’s no point trying to make sense out of U.S. marijuana laws, because they were fraudulently enacted in 1937 by soon-to-be-out-of-work alcohol prohibition bureaucrat, Harry Anslinger. He desperately wanted a new empire and no lie was too big to tell to get it.

    Paranoid, criminal President Nixon ramped up the huge fraud. His Domestic Policy Advisor, John Ehrlichman testified: “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and Black people. You understand what I’m saying,” Ehrlichman continued.

    “We knew we couldn’t make it illegal to be either against the war or Black, but by getting the public to associate the hippies with marijuana and Blacks with heroin, and then criminalizing them heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news.”

    “Did we know we were lying about the drugs? Of course we did.”

    Because so many more people consume marijuana than heroin, the tool of marijuana prohibition has been far more successful at oppressing minorities and politically active youth.

    Those who support, or engage in, this insane war on marijuana consumers, are complicit with Nixon in his crime against humanity!

    The only logical thing to do with the fraudulent marijuana prohibition is end it – completely.

  5. Orin,

    Great post and article as always. How far do you think the executive’s power to authorize state officers to enforce federal law goes? Why wouldn’t the federal executive’s authority to authorize cross enforcement sweep quite broadly? Would there be a problem with the Attorney General simply announcing that state officers are allowed to enforce federal law? Or at least federal marijuana law?

    Even assuming there is a problem with a broad grant of authority from the AG, doesn’t the “case-by-case” approach have a scope problem? It certainly makes sense if it is framed as a state officer helping a federal agent investigate “Person A.” But what if the feds define “case” as something quite broad, say “marijuana trafficking in the greater Los Angeles area” or even “marijuana trafficking in California?”

    1. Thank goodness, a growing number of state Attorney Generals are instructing prosecutors not to file cases for simple marijuana possession.

  6. So, in regards to state officials and federal laws.

    It’s pretty well understood that state and local officials can pick up illegal immigrants (especially just after crossing the border), even though it’s a federal law.

    I’d expect this would fall under the same theory.

    1. Again, Arizona v United States.

      I think the ruling was wrong, (The supremacy clause, textually, applies to “laws”, not “policies”, and this was a case where they were diametrically opposite.) but it appears relevant: It was ruled a violation of the supremacy clause for states to attempt to enforce federal laws that the federal government chose not to enforce.

      1. Re AZ vs US.
        That’s a regulation, not an enforcement action.

    2. There is an express statutory mechanism (8 U.S.C. § 1357(g)) for the attorney general to give state and local law enforcement authority to enforce immigration law. If Congress granted similar authority to enforce the Controlled Substances Act to local police (or to private citizens for that matter), I think this would be a pretty easy win for the government— but, as Prof. Kerr notes, that hasn’t happened.

  7. ‘First kill all the lawyers’

    This is all a huge WTF
    Start with the simple
    He consented to the search
    If the consent is somehow defective, there was marijuana smoke, Deputy suspected driver was DWI
    Arrest him tow the car. Get a warrant suspect more than one ounce.
    Nio?
    No license no insurance, arrest him tow the car…..

    If this is not some wayward prosecutors attempt to overturn the will of the people WRT pot laws, I don’t know what is

    No need to involve federal law unless this was the intent.

    1. The consent issue is separate and is why the court might not consider the issue Kerr is interested in (as he wrote early in the article).

      AFAIK he didn’t think the driver was DWI; all he possibly had as probable cause for a search was the smell of marijuana (which brings up the issue in the article).

  8. If anything Martinez broke two rules – the first is to shut up. Cops aren’t your friends and are not there to protect you in these scenarios. The second is consenting to a search. NEVER consent to a search.

    If he followed those two rules (as should everyone) – this case wouldn’t of gotten this far.

    1. Since the case made it this far without relying on either the defendant’s statements or his consent, I’m not sure that’s right. (To be fair, he likely could have avoided his conundrum by following the rule that prohibits convicted felons from possessing firearms.)

      1. Just in case anyone’s missing the main point (and I’m not saying you are), getting people like Martinez off the hook isn’t the point of the exclusionary rule, it’s just an unavoidable side effect of protecting those of us who *aren’t* felons in possession from too much police intrusion.

        If by “his conundrum” you mean the criminal charges, yeah, obeying the law would have helped. It wouldn’t help our conundrum of police stopping and searching people on pretexts.

        1. I’m a skeptic of the exclusionary rule as a policy matter, and it’s indefensible as a constitutional one. But if we’re not going to jettison it in this case, I don’t think that the federal ban can save this search if there wasn’t PC for a California offense. My point is simply that regexp seems to have misconstrued the facts of the case.

          1. Indefensible as a constitutional matter?

            Nonsense. The Supreme Court is allowed to craft sufficient remedies for blatant constitutional violations by an out-of-control government. The Constitution is not intended to be a dead letter.

  9. It turns out that courts are divided on the question.

    Gee, let’s hope the issue gets definitively resolved by a 5-4 vote in SCOTUS!

    1. If it gets resolved the “right” way, why not? It’s not such a high profile issue that a president would appoint justices specifically for the purpose of overruling it. And some of the justices do seem to at least give a little weight to stare decisis, so it might stick even if the court did change.

      Even if it only stuck for a decade or two, a generation of police officers would get into the habit limiting themselves according to the ruling.

  10. I would expect this issue wouldn’t be reached in this case as a driver smoking while driving would give appear to support probable cause for DWI.

    In general, I suspect that if the federal government and the state choose to cooperate, they could potentially deputize each other’s law enforcement officers to enforce each other’s crimes, but either could choose not to cooperate. So the question is what the default should be in the absence of an explicit agreement to cooperate or an explicit policy not to.

    I suspect explicit agreement ought to be needed. The power to use force to enforce the law is a power fraught with potential for abuse, and hence should require affirmative grants of authority. Nonetheless, this grant might come from custom or precedent rather than statute.

  11. Did the prosecution argue consent with enough detail, such that on appeal the state can fairly seek affirmance on that ground, even though the district court didn’t reach the issue? Just wondering if that’s a dodge option for the panel if they don’t want to weigh in on the circuit split.

    1. This was a federal prosecution and the government won in the trial court, so they can affirm even if the argument wasn’t presented below.

  12. As interesting as the federal question may be, the court might not reach it. I have seen California appellate courts rely on People v. Fews (2018) 27 Cal.App.5th 533 to justify similar searches.

  13. The “body of law” pertaining to marijuana is as worthless as the body of U.S. law pertaining to legal genocide, slavery and supporting discrimination. The war on millions of good citizens who prefer near harmless marijuana over addictive, very harmful alcohol is equally as vicious, insane and fraudulent as those other “legal” forms of oppression were.

    Thank goodness, we are ending the fraudulent marijuana prohibition, just as we ended the misguided alcohol prohibition.

    For states that are being stubborn and holding onto this persecution, citizens should become informed at the Fully Informed Jury Association. — You don’t hear about it, but juries HAVE ruled not guilty based on the conscience of at least on juror that the law against marijuana is unjust. – As the FIJA site explains:

    “As a juror, you have the right to vote your conscience, even if it means setting aside the law to conscientiously acquit someone who has technically broken the law.”

    “You cannot legally be punished for or required to change your verdict…”

    “Jurors should not give up their conscientiously held beliefs under… pressure just for the sake of consensus. If they cannot reach a verdict, the judge will at some point declare a mistrial.”

    “Judges and prosecutors may try to conceal this right from you. They may even openly deny that jurors have the ability to do this or falsely suggest that they may be punished…”

    1. As someone who very much supports legalization of marijuana— give it a rest. You aren’t helping.

      1. Marijuana reform has nothing to fear from the truth. — It is our greatest ally. — Don’t attempt to silence me. – Try contributing something instead.

  14. I fail to see how this isn’t a simple problem with a simple answer.

    The police are employed by the State, and given jurisdiction within the State, and should therefore be enforcing State laws.

    If they want to be Federal employees, then they can join the FBI or equivalent.

    1. That is how things are commonly and traditionally viewed. – This is just another attempt by the prohibitionist camels to stick their nose under the tent.

      What they don’t realize is they are dinosaurs with two feet already sinking in the tar pits.

  15. Another reason to eagerly await the inevitable day at which drug warriors will be leashed — fired, forced to try to arrange honorable employment, and disdained by decent citizens.

    1. Amen! — Science and widespread experience have shown marijuana is not addictive and is far less harmful than alcohol.

      Yet, more than 600,000 innocent Americans are arrested for simple marijuana possession each year and made second-class citizens – for life! They will forever face large obstacles to decent employment, education, travel, housing, government benefits, and will always go into court with one strike against them. They can even have their children taken away!

      25 million Americans are now locked away in this very un-American sub-class because of this bogus “criminal” record. That has a horrible effect on the whole country, being a massive waste of human potential.

      The fraudulent marijuana prohibition has never accomplished one positive thing. It has only caused vast amounts of crime, corruption, violence, death and the severe diminishing of everyone’s freedom.

      There is no more important domestic issue than ending what is essentially the American Inquisition.

    2. Because it will be easier for DV offenders to get guns without repercussions? That seems more like an unfortunate side effect that still doesn’t outweigh the benefits of legalization to me.

  16. I’m not aware of a federal decision or statute authorizing this officer or state officers generally to enforce the federal marijuana laws.

    Doesn’t Marsh v. United States and its progeny flip this around, so the states are presumed to be authorized to enforce federal law unless a federal decision or statute forbids it?

    1. Marsh v United States was a 2nd Circuit case, although Judge Learned Hands’ opinions always have weight. In the opinion, the court asked whether New York authorized its peace officers to arrest people for federal and then reviewed New York authority to determine that it did. In that case, the authority Judge Hand looked to was more long-standing custom than positive authority. But nonetheless he concluded there has to be authorization under state law for such an arrest to be valid, and he looked to state-law sources of authority to decide that.

      1. Hand held that New York had to authorize the arrest, and that it did, but also that federal law did not disallow it. It has subsequently been cited and expanded on in the 2nd and other federal circuits and in state courts, e.g. Whitlock v. Boyer (AZ, 1955), US v. Janik (7th, 1983), US v. Swarovski (2nd, 1977), Farley v. US (5th, 1967), Bircham v. Commonwealth (KY, 1951), US v. Leland (DE, 1974), US v. Seay (5th, 1970). Davida v. US (10th, 1970).

  17. “My own view, offered in the article, is that the answer should depend on whether the federal government has authorized this officer or state officers generally to search and seize to enforce the federal marijuana laws.”

    I wonder if this enough. While it makes sense to think it is required that the federal gov’t authorize the state officer to enforce federal law, the state must authorize it as well. The state seems to have a right to exclusive control over its officers under anti-commandering principles.

    1. I agree. I think that, assuming Prof Kerr is correct, that authorization should only be controlling in the absence of instruction to the contrary. If there’s a policy to refuse to allocate any State funds to the enforcement of this federal law, I would think that’s pretty much controlling with respect to if the Officer was authorized. Or with any other similar rule.

      (Although I could see Courts reaching some holding that the Federal Court only needs to consider whether the Federal Government authorized the official, and that the State laws and rules denying their Officer the right are a matter of disciplinary action by the State, and not the Federal Court’s problem.)

  18. Since the preponderance of the research shows marijuana is not a significant cause of auto accidents, and the fraudulently enacted marijuana prohibition is about to collapse, these questions will all soon be moot, and marijuana will be totally out of law enforcement purview.

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