The revolution in the country’s attitude toward marijuana that started in the ballot box is starting to reach the court system. It also is coming close to ending the so-called marijuana smell test that police use when it comes to marijuana cases.

It’s coming under fire in New York, Texas and Florida – three places that do not yet even have legal recreational marijuana.

In a court in the Bronx in New York City this past summer, a judge offered an opinion that essentially accuses “police officers of routinely lying to cover up illegal searches” when they use the marijuana smell test, according to the New York Times.

What Is The Marijuana Smell Test?

The marijuana smell test issue is one of importance for everyone, including cannabis consumers and those who use hemp. For decades, police have used some version of the phrase “I smelled the odor of marijuana” to establish probable cause for a search.

In the New York case, Judge April Newbauer addressed this in a case where the smell of marijuana led to finding a gun in a car. She wrote that “the time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop,” according to the Times.

Part of what is driving this is the fact that during the “stop and frisk” era last decade, about 50,000 New Yorkers were arrested each year for low-level marijuana crimes, the Times reported. The implication is that there are concerns the same thing is happening with searches made because the odor of marijuana is detected.

State lawmakers in New York were concerned enough about the issue to consider removing the use of the odor of cannabis as cause to search a car, but the bill did not pass.

More Complications With Legal Hemp

Things have become even more complicated. Last year, Congress made hemp legal across the country. Hemp does not contain THC – just trace amounts, if any at all. However, the smell is much the same as that of regular cannabis.

That’s led to issues in Florida and Texas.

Prosecutors in both states have said they will stop pursuing criminal cases where the marijuana smell test is a reason why officers make a search. In Palm Beach County in South Florida, such searches are no longer allowed.

In Texas, Department of Public Safety officers have been told to write up those caught possessing less than 4 ounces of marijuana with a misdemeanor citation.

Another issue in all of this is that officers do not have a reliable system to check for whether someone is “high” or not, or to be able to tell THC-free hemp from regular cannabis. Telling police officers to no longer use this approach is another big change that could happen in many places across the country until laws are changed at the national level.