Recalibrating Suspicion in an Era of Hazy Legality

After a century of employing varying levels of prohibition enforced by criminal law, the United States has entered an era where individual states are rethinking marijuana policy, and the majority of states have in some way decided to make cannabis legally available. This symposium Article will offer a description of what has happened in the past few years, as well as ideas for how jurisdictions can use the changing legal status of cannabis to reshape criminal procedure more broadly. This Article will recommend that law enforcement no longer be permitted use the smell of marijuana as a reason to search someone or some place, as this is contrary to Fourth Amendment protections and to efforts to reform criminal justice. Part I of this Article will give an overview of the state of marijuana law across the country and its implications for criminal procedure.

Part II will describe how courts are currently addressing this issue. Part III will recommend how both the courts and legislatures can enact reforms to clarify Fourth Amendment Rights in the new era of decriminalized cannabis.