Anyone who has ever done a motion to suppress a dog alert is likely to be well aware of the many variables, not to mention foibles, of drug dogs. They aren’t nearly as perfect as most people think, subject both to fairly common false positive alerts as well as the indications of their handlers to “alert”, itself a curious choice of descriptions, whenever they want them to get excited. Yet, when a drug dog alerts, humans with robes throw up their hands and accept it as conclusive. We so love things that take responsibility for decision-making out of our hands.
But what about the human nose? There’s no myth attached to the human ability to smell. Unless, of course, the nose is attached to the face of a police officer. Then, like the other senses that far surpass those of mortals, it can achieve almost dog-like abilities. David Tarrell at In the Moment got me thinking about this when he posted about passing “The Smell Test.”
I read a police report the other day in which a search warrant was procured after an investigator allegedly “smelled” raw marijuana when his allergies flared up after he entered a house. Another time, in misdemeanor DUI case, the judge denied the motion to suppress I filed after a cop smelled marijuana while sitting at a stop light and my client cruised through the green light with the window rolled down. When he denied the motion, after I argued the impossibility of such “probable cause,” he commented that I must not have been around pot very much. (How was I supposed to answer that question? Maybe he was just mad at me for asking the cop if he drove, Ace Ventura-style, with his head out the window?)
Having had my share of cases involving an officer’s discovery of marijuana by scent, and having discussed the possibility of this with a variety of people who are far more knowledgeable on the subject than me, two questions arose. First, stemming from David’s experience, I can’t help but wonder what personal experience the judge possessed for him to suggest that David hadn’t been around pot very much. If a defendant said something like that, you can bet that it would come in as an admission.
Perhaps the judge was speaking from the experience in the courtroom, where pot comes into evidence at trial. Of course, by the time of trial, the marijuana is a putrid mass of decaying vegetable matter, emitting a strong, often sickening odor. Just so I’m clear, this isn’t about the seizure of a joint, but large quantities of growing or fresh-cut marijuana; raw, unburning marijuana. I suspect that few judges have much experience with the fresh stuff, and confuse the odor of the stuff a year later, having been kept in sealed plastic bags, with the smell of green pot on the stem.
In almost every instance, there is testimony of a police officer about the strong odor of this fresh marijuana, which invariably leads them to search and discover it, whether it’s in a grow house, car trunk or suitcase. No matter that it’s perma-sealed in airtight containers. The odor, as judges apparently believe, escapes nonetheless whenever a police officer comes near. This has long been a source of amusement for defense lawyers. Probably for cops as well.
The second issue is that absence of any good research, or viable expert, to dispel this ridiculous claim that police officers can smell fresh marijuana, while the rest of us cannot. I’m not sure that this falls into the same category of “furtive movements,” that old saw that can never be disproven and invariably rears its ugly head whenever a cop can offer no other explanation for pistol whipping a perp. There is objective evidence relating to marijuana, such as the place its found and the manner in which it’s sealed. Consequently, there should be a way to put police claims to the smell test.
The problem, obviously, is that the people I know who know exactly what odors are emitted by large quantities of fresh marijuana aren’t inclined to offer testimony. There’s even a question as to whether they would be allowed to testify as experts, though no rational person would question their expertise. But these experts inform me, each and every time, that the cops are full of it. There is no possible way their claims could be true. Not even close. Yet judges, who have heard them repeated with great frequency, know better. As did David’s judge, they look down from on high, smile and mutter, “silly lawyer who doesn’t know as much about marijuana as I do.” Hahaha. Suppression denied.
It’s bad enough that the law bridges its own logical gap through the facile use of legal fictions. It;s the factual fictions, the ones that conclude that the earth is flat no matter the truth may be, that drive people nuts. In the absence of empirical proof that a police officer’s alleged mystical nose cannot smell the scent of fresh marijuana through vacuum sealed packaging, within a sealed container, through glass windows and more than a mile away, we are left with the testimony of a cop that he did so and the “inside knowledge” of a judge that fresh cut marijuana can stink up a courtroom like nobody’s business.
If only there were some aggie profs who would dedicate their professional careers to the empirical study of cannibis sativa. Or maybe there’s a nose expert out there who can fill the gap.