http://www.nydailynews.com/news/nat...ch-pedestrians-smelling-pot-article-1.2488640
the smell of marijuana alone is no longer cause enough for police to search someone on foot, according to a new ruling by one upstate New York court. The pro-pot decision by City of Ithaca Judge Scott Miller — who, in 2014, made national news for citing Peter Pan and Mary Poppins in a ruling — was in the case of Raphael Brukner.
NYC'S FIRST MEDICAL MARIJUANA DISPENSARY TO OPEN THURSDAY
Back in July 2014, Brukner was arrested when Ithaca police searched him after detecting the smell of marijuana.
He got charged with possession of marijuana, but he also got hit with charges for resisting arrest and obstruction of governmental administration.
Brukner’s lawyer, Max Brown, argued that the cops didn’t have the right to search him in the first place, so all charges should be dismissed.
In the past, courts have decided police can search vehicles based on the smell of marijuana — at least in New York — but Miller’s decision notes that the issue of whether it’s okay to search someone on foot hasn’t been decided before.
“Surprisingly, this Court has not come across any previous written New York judicial opinion which addresses the precise question presented here,” he wrote.
City of Ithaca Court Ithaca Judge Scott Miller recently ruled that smelling like pot is not sufficient cause for cops to search pedestrians.
“As this question is likely to arise again, not only in this jurisdiction, but throughout the State, a thorough analysis is warranted.”
In an extremely thorough 6,000-word analysis, Miller determined that detaining someone on foot based on the smell of marijuana would not constitute enough evidence to issue a warrant, so it shouldn’t be enough for a search.
Also, previous court decisions have clarified that police can temporarily detain a person only when there’s reasonable suspicion of a felony or misdemeanor — but the possession of small amounts of pot is now only a violation.
The prosecutor claimed that Miller failed to consider a previous case, “People v. Chestnut” that said police can search vehicles based on the smell of marijuana because of the “exigent circumstances.”
In other words, because the car can drive away and take the evidence with it, immediate search is allowed without a warrant. But Miller said he did consider it, and it didn’t apply to people traveling on foot.
“It is a crime, and a dangerous one, to drive while under the influence of marihuana,” Miller wrote. “It is not a crime however, to smell, or even reek, of marihuana while standing in public.”
Robert Gottlieb, a criminal defense lawyer and founding member of the law firm Gottlieb and Gordon, explained that the ruling could be an important addition to existing pot-related case law.
Ithaca Police Department Raphael Brukner was arrested when police searched him after detecting the smell of marijuana.
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Because the decision comes from a lower court, it’s not a binding precedent — other courts aren’t obliged to stick to it — but it will become part of the body of case law that other judges may refer to in similar cases.
“This was a fairly detailed and reasoned opinion that any responsible judge will study to determine whether or not it’s applicable,” Gottlieb told the Daily News.
Also, it’s an issue that’s likely to come up again.
“As marijuana becomes legal for medical purposes more and more there will be people walking down the street who may have an aroma of marijuana about them,” Gottlieb said.
The Manhattan-based lawyer also said the decision was significant because judges are often hesitant to rule against police.
“Even though judges know what the law is they are reluctant to tell the police, ‘You were not right to have arrested that individual,’ especially if they then find marijuana.”
“This judge should be applauded for applying the law,” he said, adding, “It’s the right decision.”
the smell of marijuana alone is no longer cause enough for police to search someone on foot, according to a new ruling by one upstate New York court. The pro-pot decision by City of Ithaca Judge Scott Miller — who, in 2014, made national news for citing Peter Pan and Mary Poppins in a ruling — was in the case of Raphael Brukner.
NYC'S FIRST MEDICAL MARIJUANA DISPENSARY TO OPEN THURSDAY
Back in July 2014, Brukner was arrested when Ithaca police searched him after detecting the smell of marijuana.
He got charged with possession of marijuana, but he also got hit with charges for resisting arrest and obstruction of governmental administration.
Brukner’s lawyer, Max Brown, argued that the cops didn’t have the right to search him in the first place, so all charges should be dismissed.
In the past, courts have decided police can search vehicles based on the smell of marijuana — at least in New York — but Miller’s decision notes that the issue of whether it’s okay to search someone on foot hasn’t been decided before.
“Surprisingly, this Court has not come across any previous written New York judicial opinion which addresses the precise question presented here,” he wrote.
“As this question is likely to arise again, not only in this jurisdiction, but throughout the State, a thorough analysis is warranted.”
In an extremely thorough 6,000-word analysis, Miller determined that detaining someone on foot based on the smell of marijuana would not constitute enough evidence to issue a warrant, so it shouldn’t be enough for a search.
Also, previous court decisions have clarified that police can temporarily detain a person only when there’s reasonable suspicion of a felony or misdemeanor — but the possession of small amounts of pot is now only a violation.
The prosecutor claimed that Miller failed to consider a previous case, “People v. Chestnut” that said police can search vehicles based on the smell of marijuana because of the “exigent circumstances.”
In other words, because the car can drive away and take the evidence with it, immediate search is allowed without a warrant. But Miller said he did consider it, and it didn’t apply to people traveling on foot.
“It is a crime, and a dangerous one, to drive while under the influence of marihuana,” Miller wrote. “It is not a crime however, to smell, or even reek, of marihuana while standing in public.”
Robert Gottlieb, a criminal defense lawyer and founding member of the law firm Gottlieb and Gordon, explained that the ruling could be an important addition to existing pot-related case law.
NEW YORK TO OFFICIALLY LAUNCH MEDICAL MARIJUANA THIS WEEK
Because the decision comes from a lower court, it’s not a binding precedent — other courts aren’t obliged to stick to it — but it will become part of the body of case law that other judges may refer to in similar cases.
“This was a fairly detailed and reasoned opinion that any responsible judge will study to determine whether or not it’s applicable,” Gottlieb told the Daily News.
Also, it’s an issue that’s likely to come up again.
“As marijuana becomes legal for medical purposes more and more there will be people walking down the street who may have an aroma of marijuana about them,” Gottlieb said.
The Manhattan-based lawyer also said the decision was significant because judges are often hesitant to rule against police.
“Even though judges know what the law is they are reluctant to tell the police, ‘You were not right to have arrested that individual,’ especially if they then find marijuana.”
“This judge should be applauded for applying the law,” he said, adding, “It’s the right decision.”
