Do You Have a Medical Marijuana Card?

Filed Under: Know Your Rights

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“Do you have a medical marijuana card?”

A cop may ask because the answer can give him something he does not have yet.

Carl Gould heard it during an April 18 traffic stop in Pennsylvania. A state trooper smelled cannabis coming from Gould’s rental car and wanted to know whether Gould had medical authorization.

Gould said no.

Police already had other facts they considered suspicious, including the odor, Gould’s criminal history, and circumstances surrounding the rental vehicle. His answer about the card was not the whole case. It did give police something the smell alone could not: evidence that Gould lacked legal authorization to possess medical marijuana.

The trooper asked for permission to search the car. Gould refused. Police towed it, obtained a warrant, and eventually found 19 bags of crack cocaine along with drug paraphernalia.

When Gould challenged the stop and search, the Pennsylvania Superior Court sided with police. In Commonwealth v. Gould, the court called the trooper’s decision to ask about the medical card “legitimate police work.”

Of course it was police work.

Pennsylvania allows medical marijuana. Once legal possession became possible, the smell of cannabis stopped answering every question for police. An officer who smells weed may still have reason to investigate, but the odor does not automatically tell him whether the person possessing it is breaking the law.

Asking about a medical card can help fill that hole.

Pennsylvania’s Supreme Court confronted the problem in Commonwealth v. Barr. Before medical legalization, marijuana odor carried enormous weight because possession was generally illegal. After the state created a legal medical market, that assumption no longer worked the same way.

The court held that marijuana odor alone does not establish probable cause for a warrantless vehicle search. The smell can still count as one factor, but police must consider the totality of the circumstances.

Michigan, Minnesota and Illinois have reached their own versions of that conclusion under their state laws. Michigan’s Supreme Court held in People v. Armstrong that the old rule allowing marijuana odor alone to establish probable cause did not survive adult-use legalization. Minnesota’s Supreme Court held in State v. Torgerson that marijuana odor by itself was insufficient to justify a vehicle search. Illinois’ Supreme Court held in People v. Redmond that burnt-cannabis odor alone no longer supplied probable cause after legalization.

None of those cases create a national smell rule. They show how changes in cannabis law have changed the facts officers may need before searching a vehicle.

A question can do that faster than a search.

“Do you have a medical marijuana card?”

The Fourth Amendment governs searches and seizures, including whether police can prolong a stop or search a vehicle. The Fifth Amendment protects against compelled self-incrimination. Miranda deals with whether certain statements obtained during custodial interrogation can be used against a person.

Those constitutional questions can arise during the same encounter without producing the same answer.

Gould and Barr are largely about what police knew when deciding whether they could detain or search. Another group of cases deals with what happens when officers start asking questions and the answers themselves become evidence.

A recent example came on November 5, 2026, in United States v. Ramos-Bonilla.

Police executing a search warrant had restrained Samuel Ramos-Bonilla while officers searched a residence and found marijuana remnants. An officer asked whether he had a medical marijuana license.

Ramos-Bonilla said no. Only afterward did the officer read him his Miranda rights.

U.S. District Judge Silvia Carreño-Coll suppressed the answer. She found that Ramos-Bonilla was already in custody and that the question about medical authorization was capable of producing an incriminating response. The judge treated the question as interrogation.

A medical card can sound like paperwork. When police have already found marijuana and want to know whether possession is lawful, asking about authorization can go directly to the suspected crime.

Miranda generally requires both custody and interrogation.

Custody asks whether the person has been formally arrested or restrained to a degree associated with arrest. Interrogation asks whether police are questioning the person in a way they should know is reasonably likely to produce an incriminating response.

Breon D. Hicks encountered both during a Florida traffic stop.

Hicks was stopped on October 29, 2019. Multiple officers physically restrained him, and one asked whether he had his medical marijuana card.

Hicks began explaining that he had received an email but had not yet received the physical card. Officers continued questioning him about marijuana after he was handcuffed.

A federal judge later suppressed two exchanges involving the card in United States v. Hicks. The September 2021 ruling found that Hicks was in custody and that the marijuana questions were reasonably likely to produce incriminating answers.

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The judge treated routine identification questions differently. Asking where someone lives or requesting ordinary identifying information can serve an administrative purpose. Asking whether someone has legal authorization for marijuana while investigating marijuana can serve an evidentiary one.

Custody was missing in the case of Antoine Ray Thomas.

Police stopped Thomas in Sioux Falls on February 10, 2022, and smelled marijuana. An officer asked whether he had a medical marijuana card.

Thomas said no.

The government argued that the question was merely administrative, much like asking for insurance or a driver’s license.

Federal Magistrate Judge Veronica L. Duffy rejected that argument in a report and recommendation. She found that the question qualified as interrogation because the answer was directly connected to whether Thomas’ marijuana possession was criminal and could contribute to probable cause. Duffy nevertheless recommended denying suppression because she found that Thomas was not in custody when he answered.

United States v. Thomas

For anyone who thinks police must read Miranda rights before asking questions during every traffic stop, that case should end the fantasy.

Police do not have to read you your rights before every question. The Supreme Court settled that decades ago in Berkemer v. McCarty. Ordinary roadside questioning during a routine traffic stop generally does not amount to Miranda custody, although a stop can become custodial if police impose greater restraints.

The absence of that warning does not require you to start explaining yourself.

Police may ask investigative questions during a stop even when you are not legally required to answer all of them. Drivers generally must provide a license and other documents required by law. Some states impose identification requirements under certain circumstances. Medical marijuana programs can also require patients to carry or produce proof of authorization.

If state law requires you to produce proof of medical authorization, comply with that requirement. Producing a card or other required proof does not necessarily mean you must discuss when you used cannabis, how much you possess or where it came from.

Gould said he did not have a card, which helped police eliminate medical authorization as an explanation for the odor.

Answering yes does not necessarily end the inquiry.

Joshua Cherfils was stopped in Florida for an improperly illuminated license tag. When the officer approached the vehicle, he smelled burnt cannabis. Cherfils produced a medical marijuana card and told the officer he had smoked earlier.

Florida permits medical marijuana, but state law does not allow a patient to smoke it inside a vehicle.

The Florida Second District Court of Appeal later upheld the search in Cherfils v. State. The probable cause analysis rested on several facts, including the burnt marijuana odor, Cherfils’ behavior, his medical card, his admission that he had smoked earlier, and the officer’s testimony about the strength of the smell.

Judge J. Andrew Atkinson’s concurring opinion made another point worth noticing. Producing the medical card helped the officer distinguish medical marijuana from legal hemp.

Cherfils did not lose because he merely possessed a medical card. The card and what he told police became part of a larger probable cause picture.

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Trying to explain away marijuana during a police encounter can hand over facts the officer did not have. The weed may belong to a friend, the driver may have smoked hours earlier, or everything in the car may have come from a licensed dispensary. A patient with valid authorization might assume discussing recent use is harmless. The person answering still has no way to know which facts police need or what another witness has already told them.

Do not lie to police or invent an explanation. Know what the law requires you to provide and be careful about volunteering information beyond it.

If police ask investigative questions you are not required to answer, you can refuse. Say it clearly: “I am exercising my right to remain silent.” Then remain silent. You are required to comply with lawful orders and provide identification or documents the law requires, but it is not your job to help police build their investigation. You do not have to explain the weed, account for the smell, or supply the fact an officer is still trying to establish.

In Salinas v. Texas, Genovevo Salinas voluntarily answered police questions during a noncustodial interview. When the questioning reached something potentially incriminating, he stopped responding. A plurality of the Supreme Court concluded that Salinas had not expressly invoked the Fifth Amendment privilege.

Berghuis v. Thompkins arose after Miranda warnings had already been given. Thompkins sat through nearly three hours of questioning while saying very little but never clearly invoked his right to remain silent. When he eventually answered an incriminating question, the Supreme Court allowed prosecutors to use the statement.

Salinas involved silence before custody, while Berghuis involved silence during custodial interrogation after Miranda warnings. Simply going quiet does not always provide the protection people expect. Invoke the right clearly, then stop answering investigative questions.

Someone who is in custody and wants counsel can say, “I want a lawyer.” There is no reason to follow that request with an explanation about the weed.

When police asked Gould for permission to search his rental car, he refused.

Police eventually obtained a warrant and searched anyway, but Gould had not permitted them. Someone who does not agree to a search can say, “I do not consent to a search.” Police may still proceed if they have a warrant or another recognized legal basis. Depending on the jurisdiction, probable cause may permit a vehicle search without a warrant, while some states impose additional requirements. Physically interfering with the search can create a separate problem. Any challenge to the legality of the search belongs in court.

A cop standing at your window may already have the smell, the traffic violation, and whatever he can see from outside the car. He may still be missing the fact that turns lawful cannabis into suspected illegal possession.

Police are gathering facts. You do not have to volunteer the ones they are missing.

“Do you have a medical marijuana card?”

Before you answer, understand what the cop may be trying to establish.

This article provides general information, not legal advice. Cannabis laws, identification requirements, and rules governing police encounters vary by jurisdiction. Anyone facing a criminal charge or specific legal issue should consult a qualified attorney in their state.

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