Smells Like Weed

At the present moment, Wyoming law instructs as follows: marijuana and all its derivative products are illegal, but hemp and CBD products (less than 0.3% THC) are legal (never mind that Wyoming’s crime lab cannot internally analyze a substance for THC content at this time). Wyoming’s southern neighbor, Colorado, being something of a weed mecca–the state of Colorado brought in $38.6 million in tax revenue from marijuana sales in September 2020 alone!–and the American public becoming more weed-friendly over the years, Wyoming’s marijuana laws have created a lot of havoc for people who use/possess pot in the state.

Under Wyoming law, possession of up to 3 ounces of “plant form” marijuana is a misdemeanor punishable by up to 12 months in jail and/or a fine of $1,000. See W.S. § 35-7-1031(c)(i)(A). Possession of greater than 3 ounces of “plant form” marijuana is a felony punishable by up to 5 years in prison and/or a fine of $10,000. See W.S. § 35-7-1031(c)(iii).

Here’s the real jam–possession of marijuana in liquid form, such as THC vape pen cartridges and the like, is a felony so long as the liquid substance weighs more than 0.3 grams. See W.S. § 35-7-1031(c)(i)(B). Likewise, possession of marijuana in crystalline form–like shatter–is also a felony if you have more than 3 grams. See W.S. § 35-7-1031(c)(i)(C).

Luckily, Wyoming’s second or subsequent offense enhancement statute does not apply to possession offenses. See W.S. § 35-7-1038(c)(“This section shall not apply to offenses under W.S. § 35-7-1031(c).”). And if it is your very first drug offense in your life, you may be able to secure a deferred prosecution agreement under W.S. § 35-7-1037. Still, if you pick up a third or subsequent possession conviction, it will be a felony punishable by up to 5 years and/or a fine of $5,000.00. See W.S. § 35-7-1031(c)(i).

In short, if you come to Wyoming from Colorado with your party supplies in liquid or crystal form or you simply buy more than 3 ounces of flower, you could face a felony just for possession.

And here’s the really dangerous part: the police will have probable cause to search your car or your house, apartment, hotel room, etc. if they just smell something that they believe is marijuana.

I. Can the police knock on my door?

First things first, most people don’t understand that the police are, generally, not violating any of your rights by simply knocking on your door and asking you questions. (And “your door” here could be your car door, the door to your home/place your staying, etc.). Such “knock and talk” investigations do not even implicate your rights because courts usually consider them entirely consensual. Without any official intrusion, coercion, or force, the Fourth Amendment and your other constitutional rights simply do not apply. See Lovato v. State, 2012 WY 10 at ¶ 9; Feeney v. State, 2009 WY 67 at ¶ 13. Under Wyoming law, for a police-citizen encounter to be considered a consensual contact the police must not have “in some way restrained the liberty of a citizen” and the citizen must have voluntarily elected to engage with the police. See Custer v. State, 2006 WY 72 at ¶ 15.

So, technically, there is a way out of a police officer knocking on your car door or front door–you could just say “no thanks – I’m not interested in talking. Please go away.” But, that could give the officer a reason to look into you more closely.

And, in light of today’s topic, that does not stop the officer from freely smelling whatever it is he or she can smell.

II. The smell of burning marijuana establishes probable cause

Under Wyoming law, the smell of burnt marijuana alone establishes probable cause to conduct a search.  See Ray v. State, 2018 WY 146 at ¶ 22 (citing cases).  Moreover, the smell of marijuana emanating from a home—an area that is specially protected under the federal and state constitutions, see Gompf v. State, 2005 WY 112 at ¶ 17 (“[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”)—is sufficient to establish probable cause to secure a search warrant of that home.  See Rideout v. State, 2005 WY 141 at ¶ 17.  What’s more, the Wyoming Supreme Court has repeatedly held that, while the smell of marijuana alone does not give the police the authority to enter a home and thoroughly search it without a warrant, it does permit the police to enter the home without a warrant “to secure the residence and prevent destruction of any evidence” before obtaining a warrant.  See Miller v. State, 2009 WY 125 at ¶ 11; Rideout, 2005 WY 141 at ¶¶ 5, 7; Tingey v. State, 2017 WY 5 at ¶¶ 48-52.

Source: Credit: Ashton

So, in Wyoming, if the police smell marijuana coming from your car or your home, apartment, hotel room, etc., they will—one way or another—be able to search the car/house/etc. And then, you will be cited or charged based on the type and quantity of marijuana you’ve got.

III. Be careful where you take your bud

With so many states legalizing weed and the leader of all the weed states being next door to Wyoming, you enter Wyoming with your legally purchased weed at your own risk. You could end up leaving the state with felony charges based on nothing more than the smell of marijuana detected by a nosy police officer at your front door.

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