Texas Ballot Measure Decriminalizes Marijuana Possession, Says ‘Odor Of Marijuana’ Is No Longer Probable Cause

It looks like Dallas, Texas residents aren’t going to wait around for the courts to react to marijuana legalization. They’ve (overwhelmingly) decided to answer one of the legal questions legalization creates by adding the answer to the ballot measure itself. (h/t Jacob Sullum, Reason)

Shall the Dallas City Charter be amended by adding a new section in Chapter XXIV that reforms marijuana possession enforcement by prohibiting the Dallas Police Department from making arrests or issuing citations for marijuana possession or considering the odor of marijuana as probable cause for search or seizure, except as part of a violent felony or high priority narcotics felony investigation; making enforcement of Class A (currently, two to four ounces) and Class B (currently, up to two ounces) misdemeanor marijuana possession the Dallas Police Department’s lowest enforcement priority; and prohibiting city funds or personnel from being used to test cannabis-related substances to determine whether a substance meets the legal definition of marijuana, except in limited circumstances.

That’s going to streamline things. Normally, legalization is followed by lengthy legal battles arising from arrests/searches initiated by cops claiming to have detected the odor of a completely legal substance. Sooner or later, the courts usually get this right (but not always!) and tell law enforcement the obvious: smelling something legal cannot possibly be considered “probable cause” to believe a crime has taken place and/or contraband will be discovered if a person or place is searched.

With this ballot measure, which was approved by nearly 67% of voters, this handy excuse for warrantless searches is no longer an option for Dallas police officers. And it also takes away one of their favorite things to do: make low-level drug arrests for possession of extremely small amounts of marijuana.

So, of course, cops are already complaining about this:

However, critics like former Dallas Police Chief Eddie Garcia, say that four ounces is an amount used by many drug dealers. In August, he told city leaders that Dallas police officers already don’t enforce possession under two ounces, and warned increasing it to four ounces wouldn’t help lower crime.

And so are some members of the city council, who seem to believe no issue should be left solely in the hands of their constituents.

Dallas Councilmember Cara Mendelsohn said during a briefing in August the measure would benefit “drug dealers and drug houses.”

“If people would like to decriminalize or legalize marijuana, they need to be talking to their state reps and state senators, their congressmen and their (U.S.) senators,” Mendelsohn said.

What a take. And a completely predictable response from someone who doesn’t agree with the passed ballot measure. Politicians love to talk up the power of the constituency when they’re winning elections but immediately claim the people are too stupid to participate in governance when they pass measures these politicians don’t like.

The bigger problem, though, is Ken Paxton, the state’s attorney general, who is more than willing to take away things Texas voters have said they actually wanted:

Now that Dallas voters have approved to decriminalize larger amounts of marijuana, the city could likely face a lawsuit from the state.

Texas Attorney General Ken Paxton has sued other Texas municipalities for similar attempts to make marijuana more readily available. That includes Denton, Austin and three other Texas cities.

Yet another official who likes the democratic process when things go his way, but is more than willing to remove the democracy from the democratic process if he doesn’t like the outcome. He sounds exactly like the president-elect, who spent most of his campaign telling supporters this would be the most fraudulent election ever but seems to have forgotten all about this allegedly widespread voter fraud the moment he won the popular vote.

We’ll have to see how long it takes for Dallas PD leadership to pass this information on to officers. Chances are, officers will continue to use the “odor of marijuana” excuse to engage in warrantless searches until one of them ends up in court. It always seems to take forever for messages like this to sink in when those that need to hear it the most are the least interested in hearing it.