RICHMOND, Va. (Oct. 8, 2020) – Last Friday, The Virginia House and Senate gave final approval to legislation to bar police from using the odor of marijuana as a reason to initiate a search. Enactment of this bill would protect the right to privacy and further undermine federal marijuana prohibition.

Sen. L. Louise Lucas (D-Portsmouth) introduced Senate Bill 5029 (SB5029) on Aug. 13. Del. Patrick A. Hope (D-Arlington) introduced House Bill 5058 (HB5058) five days later. The legislation would prohibit any Virginia state or local police officer from searching a person, place, or thing based solely on the presence of the odor of marijuana. Any evidence discovered during such a search would be inadmissible in any trial, hearing, or other proceeding.

The legislation also changes several vehicle offenses from primary to secondary offenses, meaning police would no longer be able to pull drivers over based on those offenses.

Both bills were amended with identical language. HB5058 was approved by House 51-45 and the Senate 21-17. SB5029 passed the House 53-41 and the Senate 20-19. Both bills will no go to Gov. Ralph Northam’s desk for his consideration.

Police often use “the smell of marijuana” as an excuse to search vehicles, homes and even individuals. Since the presence of an odor is highly subjective, using it as a basis for probable cause effectively gives police a “search this person free” card. All they have to do is claim to smell weed. Enactment of SB5029/HB5058 would significantly increase privacy and eliminate the basis for what would otherwise be illegal searches.


Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

Despite federal prohibition, Virginia legalized medical marijuana in 2018 and expanded the program last year. The state has also decriminalized cannabis possession. Enactment of SB5029/HB5058 would make it more difficult to prosecute marijuana users. In effect, Virginia has removed several layers of laws criminalizing marijuana despite ongoing federal prohibition. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.


Virginia joins a growing number of states increasingly ignoring federal prohibition, and nullifying it in practice.

Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. Michigan followed suit when voters legalized cannabis for general use in 2018. Vermont became the first state to legalize marijuana through a legislative act in 2018. Illinois followed suit in 2019.

With 33 states including allowing cannabis for medical use, the feds find themselves in a position where they simply can’t enforce prohibition anymore.

The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats.


Gov. Northam will have seven days from the date SB5029/HB5058 is sent to his office to sign or veto the legislation. If he fails to act, it will become law without his signature.



Mike Maharrey

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