On May 10, Gov. John Carney condemned Georgia law enforcement officers who searched the personal belongings of members of the Delaware State University lacrosse team based on an alleged odor of cannabis, calling the incident “upsetting, concerning and disappointing.”
On May 24, he vetoed House Bill 371, a bill that would have legalized possession of one ounce of cannabis for adults and cut down on the number of similar searches from continuing in the First State.
Despite decriminalization, Delaware law enforcement officers stop, search and cite or arrest nearly 6,000 citizens for cannabis-possession offenses annually. But this statistic does not fully capture the impact of drug-interdiction tactics, pretextual traffic stops and the use of allegations of the detection of an odor of cannabis, including alleged alerts by police K-9s.
The scene that played out in Liberty County, Georgia, where a stop for a minor traffic violation escalated to an intrusive search of the young women’s personal belongings, based on an alleged odor of cannabis, is a common occurrence not only in Georgia but also right here in Delaware. The same tactics are commonly used here. Law enforcement officers conduct pretextual traffic stops in the hope of finding drugs.
An alleged odor of cannabis is often cited as the justification to expand the scope of the traffic stop to include custodial detentions and vehicle searches. The stories of those who are stopped, detained, searched and released after nothing is discovered often go untold.
The tactics used in Georgia and Delaware cast a wide net in the pursuit of drug traffickers. They are stop-and-frisk by another name — stop-and-sniff. The liberty and privacy of thousands of law-abiding citizens is sacrificed for the unlikely probability of a large bust. Many arrests for cannabis offenses are for possession-only offenses. These police interactions often unnecessarily confrontational and traumatic for otherwise law-abiding citizens in possession of decriminalized amounts of cannabis, and often involve consumers being placed in handcuffs and subjected to intrusive searches of their vehicles, homes and person, including strip-searches. Far too often, people in possession of less than an ounce of cannabis are wrongly charged with misdemeanor offenses or with felony offenses.
Cannabis prohibition is a tool for law enforcement to stop individuals, allege the detection of an odor of cannabis, circumvent the Fourth Amendment and conduct intrusive searches. It is a tool for the state to seize your currency, vehicle and property without a conviction, and appropriate those assets to the state. It is a tool that is wielded disproportionately against not just people of color but also the poor and young people. Even people who do not consume cannabis are at risk of a civil rights violation from overzealous enforcement.
Our legislature passed HB 371 with enough votes to override a veto. The only question that remains is whether our representatives and senators concede to an executive I consider to be anti-democratic or stand by their votes on behalf of citizens of Delaware. The governor’s veto power is intended to act as a check on the legislature, not to thwart the expansion of liberty, civil rights and the will of supporters of cannabis legalization, said to outnumber opponents.
Passage of HB 371 is critical to the integrity and public faith in our courts, criminal justice system and system of laws. Public support for legalization is over 60%, and over 60% of both chambers of the General Assembly voted in favor of HB 371. It is an issue that the public is keenly aware of; it has been subject to significant press and has taken on greater importance with neighboring states rapidly legalizing both possession and regulated sales of cannabis. Continuing to subject people in our state to unnecessary police contact and the criminal justice system erodes trust in both the system and our laws.
With the overwhelming passage of HB 371 through the legislature, failure to implement this policy change will leave the people of this state wondering if the government really works for them and if our system of laws is broken. It will sow distrust in the institutions critical to the operation of a functional criminal justice system and do damage far beyond what is being considered by the governor and those who continue to stand against cannabis legalization.
It is imperative that the legislature stand up for the citizens of Delaware and override the governor’s veto on HB 371.
Adam Windett is a criminal defense attorney, managing partner of Hopkins & Windett and the director of the Delaware Cannabis Advocacy Network.
