A Tompkins County Court judge recently affirmed a City Court ruling that the smell of marijuana is not enough for police to search pedestrians.

Jim Wilson/The New York Times

A Tompkins County Court judge recently affirmed a City Court ruling that the smell of marijuana is not enough for police to search pedestrians.

January 23, 2017

Weed Stench Not Enough to Search Pedestrians in Tompkins County, Judge Says

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Police cannot search pedestrians in Tompkins County based solely on the fact that they smell — or reek — of marijuana, according to a Tompkins County Court decision that reaffirmed a lower court’s ruling.

“The mere odor of marijuana emanating from a pedestrian, without more, does not create reasonable suspicion that a crime has occurred, and consequently does not authorize law enforcement to forcibly stop, frisk or search the individual,” Ithaca City Court Judge Scott Miller ruled in 2015.

After the district attorney’s office appealed that ruling, Tompkins County Court Judge John Rowley reaffirmed Miller’s decision last month, setting a standard for police searches of people who smell like weed in Tompkins County.

“The lower court, in its detailed opinion, properly found that the police lacked the requisite reasonable suspicion that a crime had been, was being or was about to be committed to justify forcibly handcuffing respondent and searching him for marihuana,” Rowley wrote, dismissing Assistant District Attorney Brad Rudin’s appeal.

The case stems from the 2014 search and arrest of Raphael Brukner near Dewitt Park in downtown Ithaca by two members of the Ithaca Police Department, who were on bicycle patrol when they smelled burnt marijuana emanating from Brukner, according to Miller’s ruling.

Officers Kevin Slattery and Richard Niemi ordered Brukner to face a wall and put his hands behind his back so they could check for weapons and weed. The officers said they ultimately found a marijuana pipe on Brukner and a tin containing a small amount of pot nearby — however the search was illegal, according to Miller.

“There was no observation of the tell-tale glowing end of a burning blunt, a smoking pipe, or even the effervescent waft of a tiny cloud of smoke coming from the vicinity of the Defendant,” Miller wrote.

In a thorough 8,000-word decision, Miller noted that the question “will arise again, especially in this college town,” and “law enforcement and civilians should be given clearer guidance on this issue.”

Brukner’s case is not analogous to police smelling pot during a vehicle stop, Miller said, because while it is a crime to drive under the influence of marijuana, “it is not a crime … to smell, or even reek, of marihuana while standing in public.”

“An odor of stale or burnt marihuana on clothing, without more, is equally susceptible to the innocent non-criminal explanation that the Defendant smoked marihuana previously in private, and not in public,” the judge wrote.

Attorney Max Brown, who represented Brukner in the case, said the county court’s decision is an important one, noting that President Donald Trump’s called for an increase in stop-and-frisk policies by police during his campaign for president.

While the weed ruling only applies to Tompkins County, it could be cited by other counties and, if implemented elsewhere, could reduce racial profiling in cities like New York, Brown said, prohibiting police from stopping someone simply because they smell of pot.

Brown said the decision is an important but narrow one, joking that he doesn’t want Cornell students to read about the decision and think they can take bong rips out of car windows. Many factors, such as visible smoke, could have led to a legal search.

“[The decision] is really just saying that if you walk out of your apartment or dorm and reek of marijuana … that’s not enough,” Brown said.

District Attorney Matthew Van Houten told The Sun that he does not plan to appeal the decision, which, if the court agreed with Miller, would make the ruling applicable throughout New York.

“We have no intention of appealing it to a higher court,” he said. “We respect Judge Rowley’s decision affirming [Ithaca] City Court’s decision.”

Van Houten, who assumed the role of district attorney on Dec. 30 and had no part in the appeal, said he thinks Miller’s initial ruling was the right call.

“I agree with it,” he said. “The smell of marijuana on its own is only an indication that the person has committed something that is worthy of a ticket. You can’t detain someone for that level of offense.”

Brown said people should be polite when they are stopped by police, but it is also important that they know their rights. Now, in most circumstances, pedestrians who are stopped by police in Tompkins County and smell like weed cannot be searched, as long as there is no evidence of a crime being committed.

“Are you going to stop every kid who comes out of a Phish concert or every kid who comes out of a frat party at Cornell?” Brown said.

  • Mr. Green in the Observatory

    I do love the sticky

  • Mr. Green in the Observatory

    what’s that herb smell i smell? did you get yourself a yummy pizza?

  • Mr. Green in the Observatory

    haha those impotent ithaca cops will just have to stand their grooving on it as i blow smoke right in their faces

    • Mr. Green in the Observatory

      there* sorry im high haha