Further clarification as to the sniff test may be supported by recent decisions in Massachusetts and Colorado, that have found that the oder of marijuana alone does not give an officer probable cause.  The Massachusetts case is especially important to Vermont as at the time of the decision, possession of one ounce or less of marijuana was considered a civil infraction in Massachusetts as it is considered in Vermont.  “[W]e no longer consider the “strong” or “very strong” smell of unburnt marijuana to provide probable cause to believe that a criminal amount of the drug is present.  Commonwealth v. Rodriguez.

The wild card in the entire calculus is the fact that it is all but assured that Vermont will legalize recreational marijuana use in the near future.  In 2017, a legalization bill made it all the way to Governor Phil Scott’s desk before he vetoed it, stating that further study was needed before he signed the bill into law.  Thus, if legalization does occur, the Vermont courts may look more towards the recent decisions in Colorado to guide them in reviewing the smell test as a sole basis for a search.  “Because Amendment 64 legalized possession for personal use of one ounce or less of marijuana by persons 21 years of age or older in Colorado, it is no longer accurate to say, at least as a matter of state law, that an alert by a dog which can detect marijuana — but not specific amounts — can reveal only the presence of ‘contraband,’”.  Colorado v. McKnight

If Vermont does pass a marijuana legalization bill, expect further challenges to law enforcement’s ability to decipher criminal behavior from that of legal, including, but not limited to their ability to tell the difference between a legal amount of marijuana and that which surpasses the criminal threshold.

Vermont law enforcement officers have been trained in all sorts of techniques to gain consent from motorists.  In many cases, officers will use the, “give consent or I will have your vehicle towed” tactic, which can scare a motorist into thinking they truly have no other choice but to allow a search.

However, a recent report by CNET showed that an Iowa officer may have tried to go a little too far off the cuff  when he tried to gather consent from a motorist to search his vehicle for marijuana because the driver played frisbee golf.

The entire interaction was recorded, where the officer attempted several times to get the driver to consent to a search because in his opinion, all frisbee golfers apparently smoke weed.

The motorist was not buying into the officer’s assumptions however and, after several attempts to gain access to the vehicle, the officer let the motorist go with a warning for failing to turn on his headlights.

This tactic has raised some serious concerns as to just what strategies officers are using to gain access to people’s vehicles.  If frisbee golf is such a tactic, I don’t want to know what a Grateful Dead CD will bring.