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Writs of Assistance: The Odor of Marijuana

The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment had a specific historical context: the colonists, and later the Founders of the American Republic, were worried about General Warrants, also known as Writs of Assistance. These were all-purpose documents that permitted soldiers and law enforcement of the British Empire to search whereever and whenever they wanted for contraband, including papers, documents, and other materials that proved sedition or treason.

But, as writer Julian Sanchez notes, complaints about General Warrants also had a cultural context, as police forces, such as they were, were generally comprised of poorly trained or entirely untrained people drawn from lower social orders. So the argument that homes should not be arbitrarily invaded by the “low lif’d” was not only a principled defense of individual liberty, but also a complaint about poor, unkempt and untrained bullies rummaging through a home.

The dramatic and catastrophic erosion of Fourth Amendment protections – largely as a result of the War on Drugs – has occurred in the context of the professionalization and militarization of police forces. Today’s officer is more highly trained, particularly when it comes to the use of various types of force, and, thanks to civil asset forfeiture, better armed.

As Sanchez notes:

Perhaps it’s no surprise, then, that courts often seem to bend over backwards looking for ways to accommodate police and other government officials, explicitly assuming—utterly contrary to the spirit of the Fourth Amendment—that these upstanding professionals can and must be routinely trusted with substantial individual discretion over who, how, and when to search. We certainly don’t need a return to the hostile view that government investigators are “despicable wretches”—but it would be nice to see more recognition that they are, after all, “common fellows” whose intrusions on the privacy and dignity of their fellow citizens require judicial supervision, whether that citizen is an affluent merchant or “the poorest man… in his cottage,” and regardless of whether the investigator is a “menial servant” or a clean-cut middle-class professional.

While don’t quite have General Warrants today, we do have something very close – call it the Odor of Marijuana Warrant, which creates probable cause, according to the North Carolina Appellate Courts, to search virtually anywhere in a home or vehicle.



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