Originally published by the Seton Hall Legislative Journal
Citation:46 Seton Hall Legis. J. 489 (2022).
Table of Contents
II. HISTORY OF MARIJUANA & HEMP
III. FOURTH AMENDMENT CONSTRUCTS FOR SEARCH AND SEIZURE
IV. EXCEPTIONS TO THE WARRANT REQUIREMENT
A. Stop & Frisk
B. Homes & Curtilage
C. Land as Curtilage
D. Exigent Circumstances Exception
E. “Open Fields”
F. Plain Sight/View & Plain Smell Doctrines
G. Automobile Exception
H. Search Incident to Arrest
V. EXCLUSIONARY RULE; GOOD FAITH EXCEPTION
VI. OTHER SEARCH SETTINGS
A. Body Specimens
Marijuana and hemp are varieties of the cannabis plant. The marijuana plant appears in three types: sativa, indica, and a lesser-known non-psychoactive plant called ruderalis. The sativa and indica plants have hundreds of compounds including psychoactive and non-psychoactive cannabinoids. The major psychoactive compound and cannabinoid within these two plants is called Delta-9-Tetrahydrocannabinol (“THC”). Hemp, which is sometimes confused with marijuana, is a botanical class of cannabis sativa but has only small amounts of THC relative to the amount grown to produce marijuana. “Both hemp and marijuana come from the same cannabis species but are genetically distinct and are further distinguished by use, chemical makeup, and cultivation methods.”
In 1970, with the passage of the Controlled Substances Act (“CSA”), all cannabis varieties, including hemp, were designated Schedule I controlled substances (along with heroin, LSD, peyote, and ecstasy). While marijuana remains illegal under the CSA, hemp was subsequently removed from the CSA due to the passage of the Agriculture Improvement Act of 2018—more commonly known as the 2018 Farm Act. This has led to the propagation of hemp derivatives like cannabidiol (“CBD”) and Delta-8 along with the proliferation of hemp products. To date and pursuant to the 2014 Farm Act and the 2018 Farm Act, forty-six states, two territories, and forty-five American Indian Tribes have enacted legislation to establish hemp production programs, allow for hemp cultivation research, or to approve hemp cultivation programs. Hemp is used to make a variety of commercial and industrial products, including rope, textiles, clothing, shoes, food, paper, bioplastics, insulation, and biofuel. The global industrial hemp market attained a value of USD 4.7 billion in 2020.
The cannabis hemp plant derivative, CBD, can be extracted from both the hemp and marijuana plants if its THC concentration does not exceed 0.3 percent THC weight. “Any plant containing less than a defined concentration of the psychoactive THC is classified as hemp.” This concentration ranges from 0.2 percent of dry weight in most European countries, to 0.3 percent in Canada and the United States. CBD products are now widely available to consumers through a variety of channels such as convenience stores, tobacco stores, newsstands, pharmacies, and the internet. The CBD “global cannabidiol market size was valued at USD 2.8 billion in 2020 and is expected to expand at a compound annual growth rate (CAGR) of 21.2% from 2021 to 2028.”
The proliferation of CBD and marijuana derivatives is impacting the courts, law enforcement, and workplace settings. It is creating a confusing testing environment for laboratories and potentially serious legal outcomes for citizens. CBD and Delta-8 users cannot rely on the fact that CBD is legal everywhere and Delta-8 is legal in some states because they may unknowingly be testing positive for illegal THC. A CBD Oracle Lab Study showed that some Delta-8 products contained 7,700 percent of the legal Delta-9-THC limit, which still remains federally illegal under the CSA. Lab tests done on CBD products by Ellipse Analytics found more than half of the two hundred products tested were inaccurately labeled and lab results showed that a quarter of them—more than fifty products—falsely claimed they were “THC-free.” This is compounded by the fact that laboratories, when testing, cannot easily delineate between low levels of THC in hemp and higher THC amounts in marijuana. Formerly, “laboratories had to identify hairs on marijuana flowers and test for the presence of cannabinoids, a process that required just a few minutes and a test strip that turned purple when it was positive.” These lab tests are now more complex and consequently more expensive.
While on its face unwittingly and mistakenly using illegal THC in lieu of CBD may not seem troublesome, some users may suffer unfortunate personal and legal consequences. For example, a citizen who suffers from substance use disorders and practices a zero-tolerance alcohol and drug regime could lose their sobriety; a citizen who is mandated by a zero-tolerance drug policy through an employer may lose their job; a parolee or probationer who is mandated to practice a zero drug policy may have their parole or probation revoked; a driver may be charged and convicted with marijuana-impaired driving; a prospective employee may not be hired, or a defendant may be denied entry into a drug court program or be terminated from one. These consequences all materialize in the name of a positive THC test. People who have been injured by the mischaracterization of CBD as legal are bringing lawsuits against those companies who claim that their CBD products are legal concentrations, even though they ultimately tested positive for illegal THC.
Although there have been many past and present congressional attempts to declassify or reclassify marijuana under the CSA and there have been numerous legal challenges to the CSA classification, to date, we are at status quo with legal hemp and CBD and federally illegal marijuana. The hemp and CBD quagmire, piecemeal decriminalization by states, and differing state legalization of marijuana, all influence court decisions on the issue of cannabis search and seizure under the Fourth Amendment of the U.S. Constitution. The overall legalization of cannabis (including hemp) is impacting searches in homes, land, curtilage, vehicles, schools, workplaces, body specimens, and other scenarios, and is expanding and contracting exceptions to the search warrant requirement.
This Article will first briefly review the legal history of hemp and marijuana in the United States and examine the established legal constructs under the Fourth Amendment of the U.S. Constitution’s search and seizure provision. Second, this Article will explore past and developing state and federal appellate and U.S. Supreme Court cases in a variety of cannabis search and seizure settings. Third, this exploration will be followed by a full discussion on the exceptions to the warrant requirement and other search contexts in relation to cannabis searches. Finally, the Article will conclude by identifying trends related to the topic.
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