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Wisconsin Supreme Court Rules Cannabis Odor Enough To Justify Search
The Wisconsin Supreme Court has ruled that the odor of cannabis is probable cause for a search, despite the legalization of hemp and CBD.
The Wisconsin Supreme Court ruled this week that the scent of cannabis alone constitutes probable cause to justify a search by police, despite the legalization of other products such as hemp that have similar odors. The court’s conservative majority ruled in a 4-3 decision that police officers in Marshfield, Wisconsin, had enough probable cause to search a defendant after detecting the smell of cannabis in the car he was driving and declined to exclude evidence discovered during the warrantless search. The ruling overturns two lower court rulings that found the evidence gained in the search was inadmissible because officers could not be certain if they smelled marijuana, which is still illegal under Wisconsin state law, and hemp, an agricultural crop that was legalized by the federal government with the 2018 Farm Bill.
The court handed down the decision on Tuesday in the case of Quaheem Moore, a man who was pulled over for speeding in Marshfield by two police officers in 2019. In their report, the officers state that while talking to Moore, they detected a strong odor of burnt cannabis emanating from the vehicle. When questioned about the odor, Moore told the officers that he had a CBD vaping device and noted that the vehicle was a car that had been rented by his brother.
Scent of Cannabis Cited as Cause for Search
Although they admitted that they did detect the odor of marijuana on Moore, the officers cited the scent of cannabis coming from the car as cause to search the vehicle and Moore. The officers stated that during the search, they noted that Moore’s belt buckle appeared to be askew and upon looking closer, discovered a bulge in his pants. After closer examination, the officers discovered a hidden pocket inside the zipper of Moore’s pants, where they discovered packets of fentanyl and cocaine.
Police then arrested Moore and charged him with possession of narcotics, although he was not charged with possession of marijuana. Moore’s lawyers argued that because the police officers did not smell marijuana on Moore and because of the legality of CBD and hemp, which has an odor indistinguishable from marijuana, the police officers did not have probable cause for the search. Thus, the drugs found in the search should be excluded from evidence.
A circuit court judge and an appeals court agreed and ruled that the evidence discovered in the search was not admissible. Prosecutors appealed the rulings, saying the lower courts erred when they ruled the evidence inadmissible for trial.
Decision Overrules Lower Courts in Wisconsin
The Supreme Court disagreed with the previous rulings, overruling the lower court decisions and deciding the evidence gained in the search could be used in court. In a majority opinion written by Justice Brian Hagedorn, the court’s conservative majority found that because Moore was the only person in the vehicle, the police could reasonably assume that he “was probably connected with the illegal substance the officers identified.”
The decision relied on a 1999 Supreme Court decision that found police could arrest a driver because they connected him to the odor of cannabis in the car he was driving. That ruling said that the “unmistakable” scent of a controlled substance was evidence that a crime had been committed.
But the Wisconsin Supreme Court’s liberal minority questioned the 1999 ruling and its relevance to Moore’s case, saying that the police officers did not have strong evidence that the cannabis odor was coming from Moore. They also noted that the earlier ruling is outdated and does not take into account the subsequent legalization of hemp and CBD.
“Officers who believe they smell marijuana coming from a vehicle may just as likely be smelling raw or smoked hemp, which is not criminal activity,” Justice Rebecca Frank Dallet wrote in a dissenting opinion that was joined by two additional justices.
After Tuesday’s Supreme Court ruling was released, Moore’s attorney, Joshua Hargrove, warned that the decision could allow law enforcement offices to justify searches based on unreliable conclusions without being held accountable in court.
“This opinion could subject more citizens engaged in lawful behavior to arrest,” he said in a statement quoted by the Associated Press.
Source: https://hightimes.com/news/wisconsin-supreme-court-rules-cannabis-odor-enough-to-justify-search/
New Mexico regulators fined a cannabis operator nearly $300,000 and revoked its license after the company allegedly created fake reports in the state’s traceability software.
The New Mexico Cannabis Control Division (CCD) accused marijuana manufacturer and retailer Golden Roots of 11 violations, according to Albuquerque Business First.
Golden Roots operates the The Cannabis Revolution Dispensary.
The majority of the violations are related to the Albuquerque company’s improper use of BioTrack, which has been New Mexico’s track-and-trace vendor since 2015.
The CCD alleges Golden Roots reported marijuana production only two months after it had received its vertically integrated license, according to Albuquerque Business First.
Because cannabis takes longer than two months to be cultivated, the CCD was suspicious of the report.
After inspecting the company’s premises, the CCD alleged Golden Roots reported cultivation, transportation and sales in BioTrack but wasn’t able to provide officers who inspected the site evidence that the operator was cultivating cannabis.
In April, the CCD revoked Golden Roots’ license and issued a $10,000 fine, according to the news outlet.
The company requested a hearing, which the regulator scheduled for Sept. 1.
At the hearing, the CCD testified that the company’s dried-cannabis weights in BioTrack were suspicious because they didn’t seem to accurately reflect how much weight marijuana loses as it dries.
Company employees also poorly accounted for why they were making adjustments in the system of up to 24 pounds of cannabis, making comments such as “bad” or “mistake” in the software, Albuquerque Business First reported.
Golden Roots was fined $298,972.05 – the amount regulators allege the company made selling products that weren’t properly accounted for in BioTrack.
The CCD has been cracking down on cannabis operators accused of selling products procured from out-of-state or not grown legally:
- Regulators alleged in August that Albuquerque dispensary Sawmill Sweet Leaf sold out-of-state products and didn’t have a license for extraction.
- Paradise Exotics Distro lost its license in July after regulators alleged the company sold products made in California.
Golden Roots was the first alleged rulebreaker in New Mexico to be asked to pay a large fine.
Source: https://mjbizdaily.com/new-mexico-cannabis-operator-fined-loses-license-for-alleged-biotrack-fraud/
Four marijuana companies, including a multistate operator, have filed a lawsuit against U.S. Attorney General Merrick Garland in which they allege the federal MJ prohibition under the Controlled Substances Act is no longer constitutional.
According to the complaint, filed Thursday in U.S. District Court in Massachusetts, retailer Canna Provisions, Treevit delivery service CEO Gyasi Sellers, cultivator Wiseacre Farm and MSO Verano Holdings Corp. are all harmed by “the federal government’s unconstitutional ban on cultivating, manufacturing, distributing, or possessing intrastate marijuana.”
Verano is headquartered in Chicago but has operations in Massachusetts; the other three operators are based in Massachusetts.
The lawsuit seeks a ruling that the “Controlled Substances Act is unconstitutional as applied to the intrastate cultivation, manufacture, possession, and distribution of marijuana pursuant to state law.”
The companies want the case to go before the U.S. Supreme Court.
They hired prominent law firm Boies Schiller Flexner to represent them.
The New York-based firm’s principal is David Boies, whose former clients include Microsoft, former presidential candidate Al Gore and Elizabeth Holmes’ disgraced startup Theranos.
Similar challenges to the federal Controlled Substances Act (CSA) have failed.
One such challenge led to a landmark Supreme Court decision in 2005.
In Gonzalez vs. Raich, the highest court in the United States ruled in a 6-3 decision that the commerce clause of the U.S. Constitution gave Congress the power to outlaw marijuana federally, even though state laws allow the cultivation and sale of cannabis.
In the 18 years since that ruling, 23 states and the District of Columbia have legalized adult-use marijuana and the federal government has allowed a multibillion-dollar cannabis industry to thrive.
Since both Congress and the U.S. Department of Justice, currently headed by Garland, have declined to intervene in state-licensed marijuana markets, the key facts that led to the Supreme Court’s 2005 ruling “no longer apply,” Boies said in a statement Thursday.
“The Supreme Court has since made clear that the federal government lacks the authority to regulate purely intrastate commerce,” Boies said.
“Moreover, the facts on which those precedents are based are no longer true.”
Verano President Darren Weiss said in a statement the company is “prepared to bring this case all the way to the Supreme Court in order to align federal law with how Congress has acted for years.”
While the Biden administration’s push to reschedule marijuana would help solve marijuana operators’ federal tax woes, neither rescheduling nor modest Congressional reforms such as the SAFER Banking Act “solve the fundamental issue,” Weiss added.
“The application of the CSA to lawful state-run cannabis business is an unconstitutional overreach on state sovereignty that has led to decades of harm, failed businesses, lost jobs, and unsafe working conditions.”
Alabama regulators are targeting Dec. 1 to award the first batch of medical cannabis business licenses after the agency’s first two attempts were scrapped because of scoring errors and litigation.
The first licenses will be awarded to individual cultivators, delivery providers, processors, dispensaries and state testing labs, according to the Alabama Medical Cannabis Commission (AMCC).
Then, on Dec. 12, the AMCC will award licenses for vertically integrated operations, a designation set primarily for multistate operators.
Licenses are expected to be handed out 28 days after they have been awarded, so MMJ production could begin in early January, according to the Alabama Daily News.
That means MMJ products could be available for patients around early March, an AMCC spokesperson told the media outlet.
Regulators initially awarded 21 business licenses in June, only to void them after applicants alleged inconsistencies with how the applications were scored.
Then, in August, the state awarded 24 different licenses – 19 went to June recipients – only to reverse themselves again and scratch those licenses after spurned applicants filed lawsuits.
A state judge dismissed a lawsuit filed by Chicago-based MSO Verano Holdings Corp., but another lawsuit is pending.
Source: https://mjbizdaily.com/alabama-plans-to-award-medical-cannabis-licenses-dec-1/
New Mexico cannabis operator fined, loses license for alleged BioTrack fraud
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Alabama to make another attempt Dec. 1 to award medical cannabis licenses
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