In Part 1 (click here), we reviewed cases from medical and recreational marijuana States that evaluated the impact these statutes might have on the 4th Amendment. In this Part, we discuss marijuana’s legal status in Oklahoma and offer practical guidance that will help ensure that your investigations and reports are as defensible as possible as we await answers from the Oklahoma Court of Criminal Appeals on the 4th Amendment question. In Part 3 (click here), we will discuss the continued viability of drug detection K9s that are trained to alert to marijuana.
Marijuana’s Legal Status in a Medical Marijuana Oklahoma
Oklahoma’s Uniform Controlled Dangerous Substances Act[i] (OUCDSA) lists marijuana as a Schedule 1 narcotic[ii]. It is still a crime to possess[iii] or distribute[iv] marijuana. As a Schedule 1 substance, marijuana is arguably still contraband in Oklahoma (for a more detailed discussion, see this blog post on whether lawfully possessed marijuana is contraband in Oklahoma).
The medical marijuana statutes exist outside of and did not amend the OUCDSA. All criminal laws that existed prior to the enactment of the medical marijuana statutes remain in full force and effect. The new medical marijuana statutes create narrow exceptions to the general OUCDSA criminal statutes. That includes licensure and possession limits. A licensed patient in possession of marijuana above the statutory limits violates the OUCDSA, not the new medical marijuana statutes[v].
4th Amendment Refresher
Both the State[vi] and United States Constitutions protect against unreasonable searches and seizures. Under those protections, probable cause is evaluated based on probabilities that a crime has been or is being committed based on the facts available to the officer[vii]. The evaluation is based on the totality of the circumstances confronting the officer[viii]. This includes an evaluation of the degree of criminality associated with a given activity which, under certain circumstances, might be lawful activity. There is still a significant degree of criminality associated with marijuana possession in Oklahoma even after medical marijuana was enacted.
We do not yet know whether Oklahoma will view the protections of the medical marijuana statutes as creating only an immunity to prosecution / an affirmative defense. The 4th Amendment requires Officers to evaluate whether the information available to them establishes reasonable suspicion and/or probable cause, and this evaluation continues as new information becomes available. As new information is acquired, officers must evaluate whether it supports or dissipates the reasonable suspicion or probable cause that might once have existed[ix].
When a search or arrest is challenged, the Courts evaluate whether the officer had probable cause when the arrest or search was made. Officers cannot ignore facts that dissipate probable cause, but where probable cause existed, Courts will not require that the officer conduct additional investigation in order to rule out possible innocent explanations[x].
Under the automobile exception established in Carroll[xi], officers may conduct a warrantless search of a vehicle if they have probable cause to believe that the vehicle contains contraband or evidence of a crime. This is and either/or exception: i.e. a automobile search is justified if there is probable cause to believe there is evidence of a crime or contraband (including marijuana) in the vehicle[xii].
Practical Guidance for Oklahoma Police
Oklahoma may join the States that hold that the odor of marijuana is probable cause even when a licensed patient is involved since the OUCDSA still makes marijuana possession illegal per se. It is as likely as not that Oklahoma might join the other group of States that require officers to consider the possession limits in the medical marijuana statutes as part of the totality of the circumstances. If Oklahoma joins this group of States, then Courts may require more of Officers when licensed medical marijuana patients are involved. Since todays investigations will be judged by tomorrows Court rulings, OMAG recommends that Officers consider the following during investigations and in preparing reports when marijuana is involved:
How Strong Was the Odor?
Prior to medical marijuana, the odor of marijuana was probable cause to believe a crime was being committed regardless of the strength of that odor. A licensed medical marijuana patient can now possess certain amounts of marijuana without committing a crime[xiii]. When licensed patients are involved, Courts may require Officers to consider whether the odor of marijuana they detect suggests that the individual might be in possession of an unlawful amount of marijuana. A faint whiff suggests less than an overpowering odor given Oklahoma’s 3 oz. lawful possession limit for licensed patients. Officers should consider providing more detail as to the strength of the odor, especially when the odor is significant.
Where Could They Have an Excessive Amount of Marijuana?
3 oz. is a lot of marijuana! When dealing with a licensed patient, consider where they even could be storing more than 3 oz. Are they in a vehicle or a pedestrian? Are there bags or containers on or about their person large enough to hold more than 3 oz. of marijuana? When a licensed patient is involved, Courts may ask Officers to explain why the facts suggested that the patient might be in possession of an unlawful amount of marijuana. If they have no apparent practical ability to possess an unlawful amount, then Courts might hold that an odor of marijuana is insufficient.
Odor of Burnt or Raw Marijuana?
If Courts shift the focus when licensed patients are involved to asking whether the patient could e in possession of an unlawful amount of marijuana, then the Court may distinguish between the odor of burnt and fresh marijuana. The odor of burnt marijuana might be viewed as suggesting that the patient is out of marijuana and not in possession of an unlawful amount.
What Crime are you Investigating?
When marijuana is involved, unlawful possession is only one of several other crimes that might be implicated by the facts. The odor of marijuana, especially burnt marijuana, is very relevant when investigating crimes such as public intoxication or DUI-D. Officers are encouraged to consider not only all available facts but also all the different crimes that those facts might suggest have been or are being committed and to document this evaluation in your reports.
Who Is Being Investigated?
It is likely that Officers will confront situations where there is an odor of marijuana emanating from a vehicle occupied by multiple people, some of whom have not been issued a patient license. The 4th Amendment requires individualized suspicion[xiv]. When multiple people are involved, that facts are evaluated as they relate to each person. Possession of an illegal drug in Oklahoma can be actual or constructive, and possession need not be exclusive to one person in the vehicle. “As long as there is proof that the [non-patient] knowingly and willfully shared the right to control” the marijuana, they can be held to be in unlawful possession of the same[xv]. While our Courts might impose a more rigorous evaluation of probable cause as to licensed patients, it is doubtful that they will extend that more rigorous evaluation to those who have not been issued a license. The odor of marijuana likely still establishes probable cause to believe that the occupant(s) who have not been issued a patient license might be unlawfully possessing marijuana. Officers should document who was present and whether any persons were present who were not licensed patients.
Conclusion
The practical suggestions above, if incorporated into your investigative and reporting practices, should ensure that they are as defensible as possible regardless of the direction adopted by the Oklahoma Court of Criminal Appeals. In Part 3 (click here), we will discuss the impact of medical marijuana on drug detection K9s that are trained to alert to marijuana.
Return to OMAG's Medical Marijuana page
Footnotes:
[i] 63 O.S. §2-101 et seq.
[ii] 63 O.S. §2-204(C)(12) listed as “Marihuana”
[iii] 63 O.S. §4-402
[iv] 63 O.S. §2-401
[v] The medical marijuana statutes established various criminal provisions for those in the commercial industry who engage in certain actions, but there are no criminal provisions in the statutes for patient license holders – 63 O.S. §420(B) establishes a crime for a non-license holder to possess up to 1.5 oz. without a license fi they can state a medical condition (arguably a lesser crime that would apply in lieu of the OUCDSA provision). The criminal provision are contained in the OUCDSA, and these new statutes are exceptions to those existing crimes.
[vi] Art. II, §30 of the Oklahoma Constitution contains the parallel to the 4th Amendment. The Oklahoma Court of Criminal Appeals “interprets Article II, § 30 of the state constitution the same as the Supreme Court interprets the Fourth Amendment of the federal constitution.” Gomez v. State, 2007 OK CR 33, ¶ 11, 168 P.3d 1139, 1148. References to the 4th Amendment herein are intended to also be a reference to Art. II, §30 since our Courts use 4th Amendment caselaw to interpret challenges under Art. II, §30.
[vii] Illinois v. Gates, 460 U. S. 213 (1983)
[viii] U.S. v. Arvizu, 534 U.S. 266 (2002)
[ix] See Harte v. Bd. of Commissioners of Cty. of Johnson, 864 F.3d 1154 (10th Cir. 2017) and U.S. v. Dalton, 918 F.3d 1117 (10th Cir. 2019), both holding that the 4th Amendment was violated when officers engaged in a search authorized by a search warrant after obtaining new information just prior to or during the search that dissipated the probable cause that formed the basis for the issuance of the warrant.
[x] Rife v. Oklahoma Department of Public Safety, 850 F.3d 637 (10th Cir. 2017) (“probable cause does not require *645 police officers to rule out all innocent explanations for a suspect’s behavior.”); see also District of Columbia v. Wesby:, 138 S.Ct. 577 (2018) (“probable cause does not require officers to rule out a suspect's innocent explanation for suspicious facts.”)
[xi] Carroll v. United States, 267 U.S. 132 (1925)
[xii] Gomez, supra at note vii, ¶7; see also Lozoya v. State, 1996 OK CR 55, 932 P.2d 22 (holding that officer who smelled odor of marijuana while approaching van validly stopped for failure to dim headlights had probable cause to search for contraband), and Cole v. State, 1986 OK CR 150, 728 P.2d 492 (holding that officer who smelled burning marijuana while approaching defendant's vehicle stopped for tail light violation had probable cause to search for contraband).
[xiii] See 63 O.S. ¶420(A):
A person in possession of a state-issued medical marijuana license shall be able to:
1. Consume marijuana legally;
2. Legally possess up to three (3) ounces of marijuana on their person;
3. Legally possess six mature marijuana plants;
4. Legally possess six seedling plants;
5. Legally possess one (1) ounce of concentrated marijuana;
6. Legally possess seventy-two (72) ounces of edible marijuana; and
7. Legally possess up to eight (8) ounces of marijuana in their residence.
[xiv] Chandler v. Miller, 520 U.S. 305 (1997)
[xv] Howard v. State, 1991 OK CR 76, 815 P.2d 679
DISCLAIMER: The process leading up to the implementation of medical marijuana in Oklahoma has been a long one and is still on-going. OMAG attorneys have sought to keep updating this webpage with the most up-to-date information possible. OMAG members seeking advice on the medical marijuana statutes should be aware that there may not be clear-cut answers on some of the issues. OMAG offers this guidance to help your municipality make informed decisions about policies and procedures, directly or indirectly related to medical marijuana, until some of the issues can be decided by the Legislature or the Courts. If you have questions or concerns about the information contained in these articles, please email one of the attorneys in the OMAG Legal Department at omaglegal@omag.org.
