SCOTUS unanimously limits government's ability to deny guns to marijuana users

In a rare unanimous decision, the US Supreme Court limited the federal government’s authority to take or deny guns to marijuana users, reported Juristnews. The court held that this restriction is a violation of the Second Amendment.

Ali Danial Hemani, a dual citizen of the US and Pakistan, was indicted in 2023 for violating the Gun Control Act. He had a 9mm handgun and 60 grams of marijuana when police with a warrant searched his home. He surrendered the gun and directed police to the marijuana, which he admitted to using “about every other day.”

The federal Gun Control Act, 18 USC § 922(g)(3), prohibits gun ownership or gun by anyone who “is an unlawful user of or addicted to any controlled substance” under the Controlled Substances Act (CSA) Hemani could have faced up to 15 years in prison and the permanent loss of his gun rights for a conviction.

The court’s ruling focused narrowly on the question of the danger posed by someone who uses illegal drugs. Justice Neil Gorsuch wrote:

We appreciate that drugs and guns can sometimes make for a dangerous mix… We do not question that sometimes an individual’s unlawful use of marijuana (or any other con­trolled substance) may render him a danger to others. But…the government disclaims the need to show anything like that in this case. Instead, it asks us to conclude that anyone who regularly uses marijuana is categorically vio­lent and dangerous without any further showing.

Both the ACLU and the National Rifle Association celebrated the ruling, with ACLU legal director Cecillia Wang commenting that the ruling protects nearly half of Americans reporting use of marijuana at some point of time in their lives from arbitrary and discriminatory penalties.

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Pa. High Court to Decide Whether Flight in a High Crime Area Can Result in an Investigative Stop

Matthew T. Mangino
The Legal Intelligencer
February 6, 2025

The Pennsylvania Supreme Court will decide whether unprovoked flight from the police in a high crime area provides police with the requisite reasonable suspicion to conduct an investigatory detention.

In 2021, following a bench trial, Phillip Shivers was convicted of violating 18 Pa.C.S.A. 6105, 18 Pa.C.S.A 6106 and 18 Pa.C.S.A 6108 under the Uniformed Firearms Act. On July 18, 2019, Philadelphia police were on regular patrol in a neighborhood known for "drug activity and gun violence.” Shivers was observed near the entrance of a nearby a 7-Eleven.

As police approached Shivers, he took off running. He was soon detained by police where it was discovered that Shivers illegally possessed a firearm.

Shivers sought to suppress the discovery of the firearm based on the premise that the police violated Article I, Section 8 of the Pennsylvania Constitution in not having reasonable suspicion to conduct an investigator detention. The motion to suppress was denied, and he was convicted following a bench trial. The language of Article I, Section 8 and the Fourth Amendment are very similar.

On direct appeal to the Pennsylvania Superior Court, Shivers challenged the trial court’s ruling dismissing his suppression motion.

There are three distinct levels of interaction between police officers and citizens:

• a mere encounter;
• an investigative detention;
• a custodial detention.

In this instance, the police did not have probable cause to detain or arrest Shivers. Prosecutors contend what started as mere encounter evolved into reasonable suspicion as Shivers fled from the police while in a high crime area.

Shivers asserted the police provoked his flight by pursuing him as he walked away, and that the Pennsylvania Constitution provides greater protections to an individual subject to detention than does the U.S. Constitution.

In Illinois v. Wardlow, 528 U.S. 119 (2000), the U.S. Supreme Court held that an unprovoked flight in a high crime area is sufficient to create reasonable suspicion to justify an investigatory detention pursuant to Terry v. Ohio, 392 U.S 1 (1968).

Let’s look at Terry first. On Oct. 31, 1963, while walking the beat through downtown Cleveland, police detective Martin McFadden, with 39 years of police experience, noticed three men acting suspiciously and pacing in front of a jewelry store on Euclid Avenue.

McFadden, based on his years of experience was concerned the men were “casing a job, a stick up” and were carrying weapons. McFadden identified himself as a police officer and asked their names and searched the three for weapons.

The searches resulted in John Terry’s arrest for possessing a firearm without a license. He was convicted and appealed all the way to the U.S. Supreme Court. Although the Supreme Court in Terry acknowledged that a hunch was not enough, the court carved out a new standard of proof—reasonable suspicion.

Some 30 years later, in Chicago, Sam Wardlow was holding a bag on a city street known for heavy narcotics trafficking. After noticing police officers in the area, Wardlow fled on foot. When officers caught up with him, they conducted a protective Terry pat-down search for weapons, their training and experience told them that weapons are usually in the vicinity of narcotics transactions. The officers arrested Wardlow after discovering that he was carrying a handgun.

At a suppression hearing, Wardlow claimed that in order to stop an individual, short of actually arresting the person, police first had to have reasonable suspicion to conduct an investigatory detention. The motion was denied and he was convicted at trial.

Chief Justice William H. Rehnquist, writing for a 5-4 majority, held that police officers did not violate the Fourth Amendment when they stopped Wardlow, because the officers were justified in suspecting that the accused was involved in criminal activity and, therefore, justified in investigating further. Rehnquist wrote "flight is the consummate act of evasion."

In 1999, it appeared that Pennsylvania would adopt a contrary position on flight as a factor in reasonable suspicion determinations. In the Interest of D.M., 743 A.2d 422 (Pa. 1999), police received an anonymous phone call about a man with a gun on a street corner in Philadelphia. The call stated that he was a Black male and described his clothing. The officer was only a block away when he heard the radio call. He drove to the corner and saw D.M. who matched the description. D.M. ran from the officer and police ultimately caught up with him.

The court held that his flight was irrelevant to the reasonable suspicion analysis because D.M. did nothing to arouse the officer’s suspicion before he fled. Finding the matching of the nondetailed clothing description alone insufficient to provide reasonable suspicion for a seizure, the court held that there was a violation of the Fourth Amendment and Article I, Section 8.

In light of the Wardlow decision, the U.S. Supreme Court vacated the decision in D.M. and ordered reconsideration of the Pennsylvania Supreme Court decision. On remand, the court reversed its earlier Fourth Amendment ruling and held that it incorrectly ruled that flight was irrelevant to the reasonable suspicion analysis. “The totality of the circumstances test, by its very definition, requires that the whole picture be considered when determining whether the police possessed the requisite cause to stop appellant,” and “flight was clearly relevant.”

In recent years, the Pennsylvania Supreme Court has limited long accepted indicia of reasonable suspicion due to evolving legislation with regard to firearms and marijuana.

In Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), this court held that criminal activity justifying a stop could not be inferred from carrying a concealed gun in public because many people have licenses to carry firearms. The court held, the conduct at issue was solely possession of the gun, “there remains no particularized basis upon which to suspect that Hick’s mere possession of a concealed firearm was unlawful.”

In Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021), the commonwealth claimed that there was probable cause to search a vehicle solely because police smelled marijuana after a lawful traffic stop, and the stop was in a high crime area. The Medical Marijuana Act now permits many people to have a license to possess marijuana. As the Pennsylvania Supreme Court, held a stop based on the mere smell of marijuana was unconstitutional.

Shivers contends the Pennsylvania Constitution, Article I, Section 8, can go further than the Fourth Amendment to the U.S. Constitution in protecting people during investigatory detentions. Fleeing is an individual’s decision, and fleeing—in and of itself—is not a basis for reasonable suspicion. Being in a high crime area is not the conduct of an individual, but the conduct of others. Innocent people are in high crime areas—they may live there or work there or have friends or family living there, through no choice of their own. At times, innocent people flee from the police in high crime areas due to a fear of dangerous and even deadly encounters with the police.

The case is Commonwealth of Pennsylvania v. Shivers, 50 EAP 2024.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County. He is the author of "The Executioner’s Toll." You can follow him on Bluesky @matthewmangino.bsky.social or contact him at mmangino@lgkg.com.

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Maryland governor pardons 175,000 marijuana convictions

Maryland Gov. Wes Moore will issue a mass pardon of more than 175,000 marijuana convictions, one of the nation’s most sweeping acts of clemency involving a drug now in widespread recreational use, reported the Washington Post.

The pardons will forgive low-level marijuana possession charges for an estimated 100,000 people in what the Democratic governor said is a step to heal decades of social and economic injustice that disproportionately harms Black and Brown people. Moore noted criminal records have been used to deny housing, employment and education, holding people and their families back long after their sentences have been served.

“I’m ecstatic that we have a real opportunity with what I’m signing to right a lot of historical wrongs,” Moore said in an interview. “If you want to be able to create inclusive economic growth, it means you have to start removing these barriers that continue to disproportionately sit on communities of color.”

Moore called the scope of his pardons “the most far-reaching and aggressive” executive action among officials nationwide who have sought to unwind criminal justice inequities with the growing legalization of marijuana. Nine other states and multiple cities have pardoned hundreds of thousands of old marijuana convictions in recent years, according to the National Organization for the Reform of Marijuana Laws. Legalized marijuana markets reap billions in revenue for state governments each year, and polls show public sentiment on the drug has also turned — with more people both embracing cannabis use and repudiating racial disparities exacerbated by the War on Drugs.

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Merry Christmas! President Biden pardons thousands for possession of marijuana

President Joe Biden pardoned thousands of people who were convicted of use and simple possession of marijuana on federal lands and in the District of Columbia, the White House said, in his latest round of executive clemencies meant to rectify racial disparities in the justice system, reported The Associated Press.

The categorical pardon builds on a similar round issued just before the 2022 midterm elections that pardoned thousands convicted of simple possession on federal lands eligible. Friday’s action broadens the criminal offenses covered by the pardon. Biden is also granting clemency to 11 people serving what the White House called “disproportionately long” sentences for nonviolent drug offenses.

Biden, in a statement, said his actions would help make the “promise of equal justice a reality.”

“Criminal records for marijuana use and possession have imposed needless barriers to employment, housing, and educational opportunities,” Biden said. “Too many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs.”

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Minnesota may soon become the 23rd state to legalize recreational marijuana

Minnesota may soon become the 23rd state to legalize recreational marijuana. The state House and Senate both approved different versions of the bill last week. If they can reach agreement on a singular bill, it'll head next to Gov. Tim Walz, who has already shared his support, reported MPR.

A key part of this legislation is how it would affect people with marijuana records whose crimes would no longer be considered crimes. Like in other states that have already fully legalized weed, Minnesota lawmakers are proposing ways for people to get marijuana offenses cleared.

This process is called expungement, or sealing records. Expunged records aren’t destroyed, but they’re removed from the public view and won’t appear in background checks.

A statute passed in 2015 known as the “Second Chance Act” gave Minnesotans the ability to petition for expungement for records of all kinds – a lengthy and often difficult process. What’s written in the recreational marijuana bill related to expungement would be added to the current law, with the intention to make sealing marijuana records a simpler process. 

Why are states including expungement as part of marijuana legislation?

Expungement in these cases is a practice of social equity. Criminal records can follow people for a lifetime.

Among many potential consequences, a record can cost people jobs, housing and more. It’s legal for landlords and employers to reject applications due to marijuana records, even when arrests didn’t lead to charges or charges were dropped. 

“If you got arrested for felony drug possession, and it turns out that it was Alka Seltzer and they drop charges, there’s still a record of it. It’s still public,” said defense attorney Jon Geffen, the law firm director at the Legal Revolution, a nonprofit law firm that helps incarcerated and formerly incarcerated people with legal barriers. 

Since the 1970s, getting caught with a small amount of pot in Minnesota has been a petty misdemeanor, which is defined as “not a crime” by law, similar to a parking ticket, said Geffern.

“But if I run a background check on somebody, I make a judgment about them based on a petty misdemeanor.”

Record clearing is also a matter of racial justice. 

Black Minnesotans have been 5.4 times more likely than white Minnesotans to be arrested for marijuana possession, though usage between populations is about the same, the American Civil Liberties Union found in 2020.

“When you overpolice and overcharge [people of color], you’re going to see that disparate impact all the way through. You see it financially, causing generational problems. It even breaks up families. Let’s say dad’s got something on his record. He can’t get into the same housing, so he can’t live there,” Geffern said.

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State and local government referendums on legalizing marijuana

 As he plied the streets of Killeen in his silver Volvo SUV on a recent Sunday, Louie Minor recalled his time as a deputy constable whose duties included arresting marijuana users, reported Stateline.  

Minor, a 43-year-old Iraq war veteran, wanted to reach as many voters as possible in a mission that might have seemed improbable during his career in law enforcement. At each stop, Minor handed out a light-blue card emblazoned with a cannabis leaf and the message, “Decriminalize Marijuana Possession.”

In next week’s midterm elections, voters in Arkansas, Maryland, Missouri, North Dakota and South Dakota will consider statewide initiatives that would legalize recreational marijuana use for adults. Nineteen states and the District of Columbia already have legalized recreational marijuana. Medical cannabis is legal in nearly 40 states, plus the District of Columbia. 

Marijuana-related measures also will be on the ballot in dozens of municipalities in six other states, including Texas, another indication of how the nation’s attitudes toward marijuana are quickly evolving.

Four of the six states — Colorado, Michigan, Montana and Rhode Island — already have legalized recreational marijuana. Local voters in those states will consider whether to expand availability or, in a few cases, reduce it by overturning or curtailing previously approved types of marijuana sales, according to a compilation of upcoming ballot initiatives by The National Organization for the Reform of Marijuana Laws, commonly known as NORML. 

In Ohio and Texas, the question on some local ballots will be whether to decriminalize possession of small amounts of the drug.

In Ohio, which has legalized medical marijuana, seven communities will vote to eliminate penalties for misdemeanor possession of cannabis. A poll released in early October by Spectrum News in partnership with Siena College Research Institute showed that 60% of likely voters in Ohio supported legalizing adult use of cannabis while 37% opposed it. 

Killeen, which sits adjacent to the sprawling Fort Hood U.S. Army base, is one of five Texas cities where voters are being asked to bar local police from making arrests or issuing citations for misdemeanor possession of marijuana.

Ultimately, proponents hope to persuade Texas lawmakers to legalize marijuana statewide. But Texas prosecutors, police departments and municipal governments already have scaled back enforcement: According to a review conducted for Stateline by the Texas Office of Court Administration, misdemeanor marijuana convictions dropped from 25,671 in fiscal 2018 to 7,531 in fiscal 2022.

The Texas initiatives in Denton, Elgin, Harker Heights, Killeen and San Marcos are the result of months of petition drives and coalition-building by Ground Game Texas, which former Democratic congressional nominees Mike Siegel and Julie Oliver founded in the spring of 2021 to build strength for progressive Democrats. Republicans have dominated state politics in Texas for more than two decades.

Ground Game’s first test on marijuana enforcement was in the capital city of Austin, and it succeeded overwhelmingly. In May, voters in the nation’s 11th most populous city, a liberal enclave in a largely red state, chose to decriminalize marijuana possession (and ban no-knock warrants) by 86% to 14%.

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Biden pardons thousands of 'simple possession' of marijuana

President Joe Biden is pardoning thousands of Americans convicted of “simple possession” of marijuana under federal law, as his administration takes a dramatic step toward decriminalizing the drug and addressing charging practices that disproportionately impact people of color, reported The Associated Press.

Biden’s move also covers thousands convicted of the crime in the District of Columbia. He is also calling on governors to issue similar pardons for those convicted of state marijuana offenses, which reflect the vast majority of marijuana possession cases.

Biden, in a statement, said the move reflects his position that “no one should be in jail just for using or possessing marijuana.”

“Too many lives have been upended because of our failed approach to marijuana,” he added. “It’s time that we right these wrongs.”

According to the White House, no one is currently in federal prison solely for “simple possession” of the drug, but the pardon could help thousands overcome obstacles to renting a home or finding a job.

 “There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result,” he said. “My action will help relieve the collateral consequences arising from these convictions.”

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High Court: Odor of Marijuana Not Enough to Conduct Warrantless Search

Matthew T. Mangino
The Legal Intelligencer
January 6, 2022

The Pennsylvania Supreme Court ruled in the final days of 2021, that “the odor of marijuana alone does not amount to probable cause to conduct a warrantless search of a vehicle.” This is “heady” stuff, no pun intended. The manner in which the trial court, and ultimately the Supreme Court, reached a decision in Commonwealth v. Barr, 28 WPA 2021, is interesting indeed.

In the fall of 2018, the appellant, Timothy Barr, was the occupant of a car pulled over by the Pennsylvania State Police in Allentown, Pennsylvania. As the troopers approached the car they smelled an odor of marijuana. The troopers used the odor of marijuana as probable cause to search the vehicle.

The troopers found a small amount of marijuana and a handgun. The appellant was arrested. He subsequently filed a motion to suppress and a writ of habeas corpus. A hearing was conducted before a judge of the Lehigh County Common Pleas Court.

David Gordon, a retired surgeon and an expert in medical marijuana in Pennsylvania, testified on behalf of the appellant. According to Gordon, “there is no difference between green, leafy medical marijuana and marijuana purchased illegally on the streets.” In addition, Gordon “noted that smoking marijuana is illegal under the Medical Marijuana Act (MMA), 35 P.S. Sections 10231.101-10231.2110 but can be legally consumed through a vaping pen.” He continued “there is no difference between the odor of legally vaped and illegally smoked marijuana.”

According to Pennsylvania Supreme Court Chief Justice Max Baer’s opinion, the trial court used the high court’s recent decision in Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019) to make its decision. Hicks determined that a police officer cannot subject a person to “stop and frisk” solely for carrying a concealed firearm because it is possible to lawfully carry a concealed weapon.

In Hicks, the defendant, Michael Hicks, stopped at a gas station, talked with some friends, and showed them a gun he was carrying in a holster on his waistband. He then went into the convenience store. Police detained him and retrieved the firearm. Hicks had a permit to carry a concealed weapon. However, after being detained the police smelled alcohol on Hicks and found a bag of marijuana in his pocket.

The police initially detained Hicks based on the concealed weapon.  He was arrested and subsequently convicted of driving under the influence.

He appealed his conviction. The Pennsylvania Supreme Court held there was “no justification for the notion that a police officer may infer criminal activity merely from an individual’s possession of a concealed firearm in public.” The Supreme Court “acknowledged that it is unlawful to carry a concealed firearm if the individual is statutorily prohibited from firearm ownership or unlicensed to carry a concealed firearm, we emphasized that it is not a criminal offense for a license holder to carry a concealed firearm in public.”

The Pennsylvania Supreme Court held in Hicks that “a police officer may not infer criminal activity merely from an individual’s possession of a concealed firearm in public because a firearm may lawfully be carried and, thus, possession alone does not suggest criminal activity.”

Using the reasoning in Hicks, the trial court in Barr found, “the ‘plain smell’ of marijuana alone no longer provides authorities with probable cause to conduct a search of a subject vehicle” because the drug has been legalized in Pennsylvania for medical purposes.

The trial court suppressed the evidence and the commonwealth appealed. The Pennsylvania Superior Court agreed with the trial court—the odor of marijuana does not per se establish probable cause to allow police officers to conduct a warrantless search of a vehicle, Commonwealth v. Barr, 240 A.3d 1263 (Pa. Super. 2020). The court remanded the case back to the trial court to reconsider the defendant’s motion to suppress physical evidence.

The Pennsylvania Supreme Court granted certiorari. The appellant argued that the smell alone of marijuana should not be enough to establish probable cause. The appellant acknowledged “that the ‘determination of whether probable cause exists to support a warrantless search or seizure is based on an evaluation of the totality of the circumstances observed by the officer when making the arrest.’”

However, the appellant suggested with the passing of MMA,” the smell of marijuana cannot establish an individualized suspicion of criminal activity. Thus, the appellant maintains, the odor of marijuana should be given no weight at all in determining whether probable cause exists to conduct a warrantless vehicle search.”

The commonwealth disagreed; the MMA did not alter the well-settled totality of the circumstances test utilized to establish probable cause. The commonwealth suggested that the Pennsylvania Superior Court properly concluded that, while the smell of marijuana alone cannot, in and of itself, establish probable cause to support a search in the “post-MMA era,” the odor of marijuana is a relevant factor to consider when examining the totality of the circumstances.”

Baer agreed, there are many circumstances in which marijuana is still illegal, “the smell of marijuana indisputably can still signal the possibility of criminal activity. Given this dichotomy, we conclude that the odor of marijuana may be a factor, but not a standalone one, in evaluating the totality of the circumstances for purposes of determining whether police had probable cause to conduct a warrantless search.”

The court found that Hicks applies, “like the carrying of a concealed weapon by a licensed individual … it is simply not a crime for an individual to possess or use marijuana if the requirements of the MMA have been satisfied.”

In spite of its finding, the high court reversed the Superior Court’s decision to remand the case back to the trial court to reconsider the defendant’s motion to suppress physical evidence and reinstated the trial court’s order to suppress.

Pennsylvania Supreme Court Justices Kevin Dougherty and Sallie Mundy agreed with the majority’s conclusion that the smell of marijuana is a factor to consider under the totality of circumstance when formulating probable cause, but took issue with the majority opinion granting the motion to suppress without remanding to the trial court to considering the totality of the circumstances at the time of the stop in question.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County. He is the author of “The Executioner’s Toll.” You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com.

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PA Supreme Court rules odor of marijuana alone not enough for vehicle search

Pennsylvania Supreme Court ruled that the smell of marijuana can no longer serve as the sole basis for a warrantless vehicle search, according to The Legal Intelligencer.

The decision upheld in part a ruling from the Superior Court, which determined that the odor of marijuana can still factor into a police officer’s determination of probable cause to conduct a search, but it cannot be the only factor. 

James Martin of the Lehigh County District Attorney’s Office, who represented the state of Pennsylvania in the case, said that following this decision, there is still uncertainty regarding how cannabis use can factor into determining probable cause under the MMA. “I don’t know that it clears it up at all to tell you the truth,” he said.

“The Supreme Court will logically have to address the totality of the circumstances factors at some future time when someone takes issue with what the Superior Court may determine is a proper factor(s) to be considered,” the defendant’s attorney Joshua Karoly of the Karoly Law Firm wrote in an emailed response. “Until then, plain smell arrests will not be made and there is still a lot of lawyering to do.”

Chief Justice Max Baer penned the majority opinion, which Justices Debra Todd, Christine Donohue and David Wecht joined. In it he wrote that, since marijuana use is no longer always criminal, the smell alone does not indicate illegal activity. 

Still, he wrote, there are many circumstances in which cannabis is still illegal, and so “the smell of marijuana indisputably can still signal the possibility of criminal activity. Given this dichotomy, we conclude that the odor of marijuana may be a factor, but not a standalone one, in evaluating the totality of the circumstances for purposes of determining whether police had probable cause to conduct a warrantless search.”

In a two-paragraph concurring opinion, Justice Thomas Saylor said he believed the smell of burnt marijuana was likely to indicate criminal activity since smoking cannabis, regardless of whether the product itself is obtained legally, is illegal.

The case, captioned Commonwealth v. Barr, also addressed whether precedent established in Commonwealth v. Hicks can apply to licensed marijuana use. Hicks determined that a police officer cannot subject a person to “stop and frisk” practices solely for carrying a concealed firearm because it is possible to do so lawfully. 

The court found that the precedent applies because, “like the carrying of a concealed weapon by a licensed individual in Hicks, it is simply not a crime for an individual to possess or use marijuana if the requirements of the MMA have been satisfied.”

The high court reversed the Superior Court’s decision to remand the case back to the trial court to reconsider the defendant’s motion to suppress physical evidence that the police collected during a search of his vehicle. Instead, the state Supreme Court reinstated the trial court’s grant of the motion, which prompted two separate concurring and dissenting opinions from Justices Kevin Dougherty and Sallie Mundy. 

Both justices agreed with the majority’s conclusion that the smell of weed must be considered alongside other factors when considering probable cause, but they said the trial court erred in granting the motion to suppress by not considering the “totality of the circumstances” under which the stop occurred. 

Dougherty also expanded upon how “the smell of marijuana retains salience in the probable cause analysis.”

Martin said he applauded Dougherty and Mundy’s opinions for recognizing that medical marijuana can still be used in an illegal way.

The defendant, Timothy Barr II, had been charged for unlicensed possession of a firearm in addition to possession of a small amount of marijuana after state troopers pulled him over and noticed the smell. Barr presented the troopers with his medical marijuana card, but the officers proceeded to search the vehicle, where they found a loaded handgun. 

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Delaware: Smell of pot from vehicle not probable cause

The Delaware Supreme Court has ruled that marijuana and cocaine seized after police arrested a juvenile should be suppressed because the pot smell emanating from the vehicle in which she was a passenger didn’t provide probable cause for her arrest, reported the ABA Journal.

The court ruled 4-1 for Heather Juliano, which is a pseudonym used for the juvenile who was 15 years old at the time of her arrest, Law360 reports.

She was charged after she handed over the drugs in her pants in an effort to avoid a strip search.

Police pulled over the car in which Juliano was riding because she wasn’t wearing a seat belt. One of two officers on the scene decided to arrest the car’s occupants after detecting the smell of marijuana. All four occupants of the vehicle were removed and handcuffed. At the police station, Juliano retrieved a bag of marijuana and a bag of cocaine from her pants.

Juliano was found delinquent on charges of aggravated possession of cocaine, drug dealing and aggravated possession of marijuana.

The Delaware Supreme Court noted in its Sept. 10 opinion that Delaware lawmakers decriminalized personal-use quantities of marijuana in 2015. Possession of smaller amounts of marijuana was a misdemeanor for juveniles younger than age 18 and a civil offense for adults.

Delaware law allows warrantless arrests for misdemeanors when the officer has probable cause to think that the offense was committed in the officer’s presence. Warrantless arrests for civil violations are not permitted.

The smell from the vehicle didn’t establish a fair probability that Juliano consumed the marijuana in a moving vehicle, the state supreme court said. And the record does not support a conclusion that the officers knew that Juliano or other vehicle occupants were younger than age 18. Nor is there evidence providing officers with a reasonable belief that Juliano had a larger quantity of marijuana that was subject to stiffer penalties, the state supreme court said.

“Under the totality of the circumstances presented by the state in this unusual case, including the vagueness of the officers’ description of the marijuana odor, the timing of their detection of that odor, and the absence of any other observations indicative of criminality, Juliano’s arrest was unreasonable,” the Delaware Supreme Court said in its majority opinion.

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New Jersey vacates thousands of marijuana convictions

 New Jersey has vacated or dismissed tens of thousands of marijuana convictions as the state continues to work out the details of its new legal cannabis market, reported NJ.com.

The state Judiciary has dealt with 88,000 cases so far, it announced Monday evening. These are the first wave of an estimated 360,000 identified that qualify for expungement.

Cases that have been vacated or dismissed still need to be expunged. That’s the step that ultimately clears a person’s record. That phase will come in the next few months, according to the judiciary.

A state Supreme Court order issued earlier this month laid out a process for vacating, expunging and dismissing certain marijuana offenses from people’s records. These include selling less than one ounce of marijuana and possession, as well as related crimes like possession of drug paraphernalia, being under the influence, failing to turn over marijuana or being or possessing marijuana while in vehicle.

The order fulfills the promise of the marijuana decriminalization law. In February, Gov. Phil Murphy legalized weed by signing a package of bills. One set up the framework for legal, 21 and older marijuana sales and the other ended all arrests and fines for possessing marijuana.

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New York legalizes use of recreational marijuana

After years of stalled attempts, New York State has legalized the use of recreational marijuana, enacting a robust program that will reinvest millions of dollars of tax revenues from cannabis in minority communities ravaged by the decades-long war on drugs, reported the New York Times.

Gov. Andrew M. Cuomo signed the cannabis legislation on March 31, 2021, a day after the State Legislature passed the bill following hours of debate among lawmakers in Albany.

New York became the 15th state to legalize the recreational use of cannabis, positioning itself to quickly become one of the largest markets of legal cannabis in the nation and one of the few states where legalization is directly tied to economic and racial equity.

Previous attempts to legalize marijuana were stymied over disagreements on how the tax revenue from sales would be distributed. Democratic lawmakers, especially those who are nonwhite, insisted that a large portion of the money be earmarked for communities where Black and Latino people have been arrested on marijuana charges in disproportionate numbers; the governor wanted to retain more control over how the money was spent.

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Gov. Wolf signs off on 310 pardons

Gov. Tom Wolf has signed off on 310 pardons, 69 of them impacting the lives of nonviolent marijuana offenders, whom criminal justice advocates say face a lifetime of repercussions for an offense that's now treated no more seriously than a traffic ticket in some jurisdictions across the state, according to the Pennsylvania Capital-Star.

Wolf signed the pardons last week, his office said in a statement. The marijuana offenders were included in a new state program, started in 2019, under the auspices of Lt. Gov. John Fetterman, who chairs the state Board of Pardons, and who has been an outspoken advocate of cannabis legalization. The program speeds up the lengthy pardons process for people with nonviolent convictions for marijuana possession or paraphernalia charges.

"These pardons will give these 310 people a chance to put the conviction behind them, offering them more opportunities as they build careers, buy homes, and move on with their lives free of this burden,” Wolf said in a statement released by his office. “In particular, the nonviolent marijuana convictions-associated pardons have been expedited to make what was a years-long process now a matter of months.”

In all, Wolf has signed 95 pardons related to the expedited marijuana conviction review program, his office said in a statement.

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Recreational marijuana is legal in New Jersey

 After years of false starts and failed attempts, New Jersey Gov. Philip D. Murphy signed into law three bills that effectively permit and regulate the use of recreational marijuana in New Jersey, making it the most populous state in the Northeast to fully legalize the drug, reported the New York Times.

New Jersey is now one of 14 states to legalize the recreational use of cannabis for adults 21 and older, while also easing several penalties for underage possession and allowing for the creation of a regulated market that could provide a welcomed boost to the state’s economy as it recovers from the pandemic.

Legal sales likely remain months away at the earliest, as the state takes on its next task of creating a heavily regulated industry large enough to support public demand, with licenses still to be doled out to dispensaries.

But after years of failed legislative efforts to approve the use of recreational marijuana, Monday’s move came as a long-awaited win for supporters, including Mr. Murphy, who had long pushed for the inclusion of measures to address the disproportionate number of marijuana arrests in communities of color.

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Legalized marijuana leads to corruption

In the past decade, 15 states have legalized a regulated marijuana market for adults over 21, and another 17 have legalized medical marijuana, reported Politico. But in their rush to limit the numbers of licensed vendors and give local municipalities control of where to locate dispensaries, they created something else: A market for local corruption.

Almost all the states that legalized pot either require the approval of local officials — as in Massachusetts — or impose a statewide limit on the number of licenses, chosen by a politically appointed oversight board, or both. These practices effectively put million-dollar decisions in the hands of relatively small-time political figures — the mayors and councilors of small towns and cities, along with the friends and supporters of politicians who appoint them to boards. And these strictures have given rise to the exact type of corruption that got Correia in trouble with federal prosecutors. They have also created a culture in which would-be cannabis entrepreneurs feel obliged to make large campaign contributions or hire politically connected lobbyists.

 “All government contracting and licensing is subject to these kinds of forces,” said Douglas Berman, a law professor at Ohio State University who authors a blog on marijuana policy. But “there are unique facets to government contracting in [the cannabis] space that makes it uniquely vulnerable to corruption.”

It’s not just local officials. Allegations of corruption have reached the state level in numerous marijuana programs, especially ones in which a small group of commissioners is charged with dispensing limited numbers of licenses. Former Maryland state Del. Cheryl Glenn was sentenced to two years in prison in July for taking bribes in exchange for introducing and voting on legislation to benefit medical marijuana companies. Missouri Gov. Mike Parson’s administration is the target of law enforcement and legislative probes into the rollout of its medical marijuana program.

“The state Is given full control in an industry where there is so much competition — where everyone realizes how valuable these licenses are,” said Lorenzo Nourafchan, CEO of Northstar Financial Consulting, which works with cannabis businesses.

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Recreational drug use the big winner in the 2020 election

It may be days before we know who won yesterday's presidential election, but by the end of the evening, it was clear that drug warriors had suffered a resounding loss. Across the country, in red and blue states, on both coasts and in between, in the Midwest and the Deep South, voters passed ballot initiatives that not only continued to reverse marijuana prohibition but also broke new ground in making drug laws less punitive and more tolerant, reported Reason.

New Jersey's approval of marijuana legalization was expected. Preelection surveys consistently put public support above 60 percent, although the actual margin of victory was a few points bigger than the polls suggested.

Arizona, where voters rejected legalization in 2016, was iffier. Public support averaged 56 percent in five polls conducted from mid-May to mid-October, and voters have been known to have second thoughts about legalization as Election Day approaches. In the end, legalization won by nearly 20 points. Survey averages likewise underestimated public support in Montana, where voters approved legalization by a 13-point margin, and Mississippi, where voters favored a relatively liberal medical marijuana initiative by a margin of nearly 3 to 1.

And who would have predicted that South Dakotans, who are overwhelmingly Republican and conservative, would make their state the first jurisdiction in the country to simultaneously legalize medical and recreational marijuana? Not me. Voters favored the former measure by more than 2 to 1, while the latter won by seven points.

"These results once again illustrate that support for legalization extends across geographic and demographic lines," says Eric Altieri, director of the National Organization for the Reform of Marijuana Laws. "The success of these initiatives proves definitively that marijuana legalization is not exclusively a 'blue' state issue, but an issue that is supported by a majority of all Americans—regardless of party politics."

The South Dakota results were not the only first yesterday. By a margin of more than 3 to 1, voters in Washington, D.C., approved quasi-decriminalization of "entheogenic plants and fungi." That initiative, which says suppressing the use of such substances should be "among the lowest law enforcement priorities for the District of Columbia," goes further than similar measures enacted recently in Denver, Ann Arbor, Oakland, and Santa Cruz, since it applies to noncommercial production and distribution as well as possession and covers ibogaine, dimethyltryptamine, and mescaline in addition to psilocybin and psilocin (although it does not include a prohibition on the use of public funds to pursue such cases).

Oregon, meanwhile, became the first jurisdiction in the United States to legalize psilocybin and the first to decriminalize possession of all drugs. The first initiative, which won by a margin of more than 11 points, allows adults 21 or older, regardless of whether they have a medical or psychiatric diagnosis, to consume psilocybin at state-licensed centers. The second measure, which was supported by nearly three-fifths of voters, makes low-level, noncommercial possession of controlled substances, which was previously a misdemeanor punishable by up to a year in jail, a citable offense punishable by a $100 fine.

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GateHouse: Recreational marijuana: Coming soon to a state near you

 Matthew T. Mangino
GateHouse Media
October 16, 2020

There is a “green wave” sweeping the country. Ballot initiatives in Arizona, New Jersey, South Dakota and Montana are seeking to legalize marijuana for recreational use.

Don’t be fooled, the green does not represent marijuana - it represents money. More and more states are legalizing marijuana, not because there has been a massive shift in public sentiment on marijuana use, but because states can raise revenue from marijuana sales.

Ever since Colorado and Washington became the first two states to approve marijuana legalization in 2012, nine states and three territories have joined them including Alaska, California, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, the District of Columbia, the Mariana Islands and Guam. Another 16 states and the U.S. Virgin Islands have decriminalized marijuana and 33 states allow medical marijuana use.

It was not long ago that gambling was illegal everywhere outside of Nevada. Today, you can bet inside some ballparks while games are in progress - try justifying that to Pete Rose or the descendants of Shoeless Joe Jackson. Why? States have made about $1.8 trillion in tax revenue from gambling.

How much tax revenue can marijuana generate?

Legalizing marijuana nationwide would create at least $132 billion in tax revenue and more than a million new jobs across the United States in the next decade, according to a new study by New Frontier Data. The marijuana industry could create an entirely new tax revenue stream for the government, generating millions of dollars in sales tax and payroll deductions.

The analysis shows, according to the Washington Post, that if marijuana were fully legal in all 50 states, it would create at least a combined $131.8 billion in federal tax revenue through 2025.

What is on the ballot for Nov. 3?

In New Jersey, Governor Phil Murphy made a campaign promise to legalize marijuana suggesting that legislation could generate hundreds of millions of dollars in tax revenue.

New Jersey’s Public Question No. 1 would legalize marijuana for adults 21 and older. The sale of recreational marijuana products would be subject to the state’s 6.2% sales tax.

New Jersey first legalized medical marijuana and is now taking on recreational marijuana. South Dakota is going straight to recreational marijuana.

Measure 26 would establish a medical marijuana program and registration system for people with qualifying conditions, as well as on Amendment A, which would legalize marijuana for all adults. According to the Argus Leader a majority of South Dakotans support the measure.

In Arizona, where four years ago residents narrowly defeated an initiative to legalize recreational marijuana, the issue is back on the ballot.

Proposition 207 is structured similarly to 2016′s measure. It would allow adults to possess, consume or transfer up to 1 ounce of marijuana and create a regulatory system for the products’ cultivation and sale.

According to CNN, recreational sales in Arizona could total more than $700 million by 2024.

In Montana policymakers expect recreational marijuana sales to total nearly $193 million by 2025, generating $38.5 million in tax revenue.

According to the Billings Gazette, there are two measures on Montana’s ballot. First, the state is asking voters to amend the state Constitution to authorize a minimum age for alcohol and marijuana purchases, and second, to allow adults in the state to possess, buy and use marijuana for recreation.

Some proponents of criminal justice reform suggest that legalizing marijuana will have a positive impact on racial justice initiatives.

“Cannabis criminalization is a cornerstone of the war on drugs,” Jared Moffat of the Marijuana Policy Project, told The Appeal.

According to the Pew Research Center, 40% of all drug arrests in 2018 were marijuana-related. The overwhelming majority were for possession, as opposed to sale or manufacture.

Legalizing marijuana will have a two-fold effect - pump new revenue into state and local economies and reduce the inequity of racially disparate mass incarceration and the residual ill effects of having a criminal conviction.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Colorado governor pardons 2,732 marijuana convictions

Governor Jared Polis has used a new executive authority to automatically pardon 2,732 low-level marijuana possession convictions effective October 1, reported Westword.

His authority to do so comes from a new law allowing Colorado's governor to pardon convictions for possession of two ounces of marijuana or less — however, these pardons only cover convictions for one ounce or less. Polis's move automatically pardoned state convictions dating back as far as fifty years and running up through late 2012, when voters approved Amendment 64. Because one person can have multiple marijuana possession convictions, the governor doesn't know the exact number of people he's pardoned, but he estimates it to be "thousands of people."

"It's off their records. If they have a background check at work or want a concealed-weapons permit or a student loan, this will no longer hold anybody back," Polis says. "And it's also symbolically important, because it shows that as a state and nation, we're coming to terms with the incorrect discriminatory laws of the past that penalized people for possession of small amounts of marijuana."

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Illinois Governor grants 11,017 pardons for marijuana convictions

Illinois Governor JB Pritzker granted 11,017 pardons for individuals convicted of misdemeanor cannabis offenses involving less than 30 grams, reported Jurist.

The expungements involved Illinoisans in 92 counties. The landmark bipartisan Cannabis Regulation and Tax Act, signed by the governor in June, provided paths to relief for more the 700,000 cannabis-related arrest and conviction records. While Illinois is the eleventh state in the country to legalize cannabis, it is the first to legalize recreational cannabis for adults through its legislature, rather than voter initiatives.

In a statement announcing the expungements, Pritzker said:

Tomorrow when adult-use cannabis becomes legal, pay attention to the fact that we are beginning to accomplish four very important things: We are ending the 50-year long war on cannabis. We are restoring rights to many tens of thousands of Illinoisans. We are bringing regulation and safety to a previously unsafe and illegal market. And we are creating a new industry that puts equity at its very core.

The pardon process looks different for various offenses. The Prisoner Review Board reviews cannabis convictions for up to 30 grams not associated with violent offenses for accuracy and then forwards them to the governor for pardon consideration. There are 116,000 records eligible for expungement through this process.

Individuals, civil legal aid organizations, and the state’s attorneys can file motions to vacate for cannabis offenses up to 500 grams. There are approximately 34,000 records eligible through this process.

Arrest records that did not result in a conviction of up to 30 grams will automatically by expunged, so long as the arrest is not associated with a violent offense. There are approximately 572,000 arrest records eligible for expungement through this process.

Illinois Lieutenant Governor Juliana Stratton said, “Illinois is going where no other state has before, admitting that unjust errors of the war on drugs and giving so many Illinoisans greater opportunities to build good lives for themselves and the people they love.”

Many more pardons and expungements will come in the next several months.

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Illinois is 11th state to legalize recreational use of marijuana

Illinois Governor J.B. Pritzker signed The Cannabis Regulation and Tax Act on Tuesday, making Illinois the 11th state to legalize the recreational use of marijuana, reported Jurist. As of January 1, 2020, any adult over 21 years of age will be able to legally purchase cannabis for personal use from the licensed dispensaries across Illinois.

The law places limits on its possession and uses, including the max possession of 30 grams of the cannabis flower and no more than 5 grams of cannabis concentrate.

The Bill was introduced early in 2019 by Illinois state Rep. Michelle Mussman and ended up having 31 sponsors by the time the 101st General Assembly passed the bill. The bill passed the house nearly six months after it was introduced, officially becoming a public act on June 25, 2019.

Illinois is the first state to pass tax-and-regulate marijuana legislation through a legislative act rather than a voter-based ballot initiative. It also provides for expungements of prior cannabis possession convictions of 30 grams or less.

The most unique component of this bill is the ‘social equity’ component. A percentage of the tax revenue will go towards funding for minority neighborhoods hit hardest by the prosecution of marijuana possession.  The funding is meant to defray some of the start-up costs associated with entering the legal marijuana industry.

Illinois expects the new legal marijuana market will generate $50 to $500 million in the first year in additional tax revenues.

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