It Smells or It Stinks

It may not be among the most common reasons for a car stop, but it happens often enough to raise again.  Officers driving with the windows of their cruiser down, smell marijuana and, upon that basis, stop a car.  It’s been raised innumerable times around the country, often being the subject of ridicule at the ridiculousness of the claim.

But other times, the judge does what Norfolk Circuit Judge Everett Martin did:

Officer Robert Frenier testified he was driving in the 3700 block of E. Princess Anne Road on Dec. 7 when he smelled marijuana through his patrol car’s vents. He said he and two other officers in his vehicle believed the smell was coming from the Dodge Neon in front of them.

“I don’t find it inherently incredible,” Martin said before finding the stop was legal. “I find it quite believable.”

No pot was found, but that doesn’t mean it didn’t smell to Judge Martin.  What makes this finding particularly curious is that fellow circuit judge from Chesapeake, Marjorie A. Taylor Arrington, just last October, was faced with the same situation.

Officers smelling small amounts of raw marijuana in vehicles they pass? No way.

“I find it extremely difficult to believe,” Circuit Court Judge Marjorie A. Taylor Arrington said Tuesday before ruling police had no legal reason for a traffic stop last year in South Norfolk that yielded a wad of marijuana the size of a pingpong ball.

Her rationale, sadly, was facile:

“This is a case of common sense,” she said.

While most of us share the “common sense” of smell, it’s the one sense that almost invariably evades proof beyond testimonial.  Sure, there are means to detect odors, but cops don’t have them, unlike cameras to record sound and image.  If a cop says he smelled something, how can he be proved wrong?

The problem is that the claim doesn’t fall within the normal parameters of human senses.  Any city dweller is familiar with the experience of walking down the street and catching the odor of weed from somewhere in the crowd.  The smell is not exactly unfamiliar.  But then, have you had the experience of smelling pot as you’re driving down the road in a car?  Has the judge? The cop says so, but how is one to measure whether his claim is true or total crap?

The juxtaposition of the two recent Virginia cases (and yes, there are dozens, maybe even hundreds of other cases around the country) brings the problem to a head: one judge finds the claim incredible, while another finds it “quite believable.”

Whether the officer is credible is invariably fact specific, so precedent isn’t of much help.  Rather, the determination seems to be more likely grounded upon how likely a judge is to assume the officer is telling the truth.  For the judge who is inclined to believe the cop, the cop is believable. For the judge who is more skeptical, the story is less persuasive.

In light of the growing pervasiveness of video, whether police or otherwise, the availability of a ready basis for probable cause that relies solely on a sense proven testimonially presents a problem.  It’s the new “dropsy.”

Thus, the question is whether the acceptability of police testimony of this remarkable ability to smell pot while driving down the road will be dependent on the judge’s experience, or more likely, willingness to blindly believe anything a cop says.  Or should there be, can there be, a rule that limits the use of smell as a basis for probable cause?

Frankly, it seems as if a rule is needed, as dependence on the judge’s sensibilities leads to both wildly divergent rulings such as those in Virginia, and makes individual freedom almost entirely dependent on judicial bias, with essentially no means of effectively challenging the credibility determination.

But what rule?  Or are we constrained to suffer one judge finding it incredible while the next finds it quite believable, and conviction or dismissal becomes solely dependent on the luck of the judicial draw?  Having given some thought to the idea of a rule, I haven’t been able to come up with anything worth sharing.  Anyone?

H/T Marilou Auer

34 comments on “It Smells or It Stinks

  1. John Hawkinson

    A not-very-good rule: only consider such claims credible if accompanied by a dashcam (or bodycam) recording that starts prior to the claimed “first sniff.”

    But what is also needed are more statistics/data on how often this happen (how often people are stopped), how often it leads to conviction, and (ha ha ha) how often it was really true versus a proxy for some other kind of judgement (excellent hunch or profiling?)

  2. David

    So where is the requirement for scientific basis for this type of testimony? When an officer testifies that he sees a 2 inch object when the subject is 10 feet away, it is reasonable to assume that is within the realm of human sight. If he testified that he saw the same thing at a mile I would assume that he would have to offer some basis for this type of testimony.

    Why isn’t there a similar for requirement for smell? Isn’t the burden on the prosecution to have a foundation for any evidence introduced?

  3. j a higginbotham

    Are they claiming to smell marijuana itself or smoke?

    [Is the lack of reasonable probable cause something a CDL (however that should be hyphenated) is not allowed to bring up in front of a jury for a subsequent charge?]

    1. SHG Post author

      Sometimes, it’s the odor of burnt marijuana. Sometimes, it’s the odor of raw marijuana. Usually, that depends on what they find after the search. As for “lack of reasonable probable cause” (there is no such thing as unreasonable probable cause, by the way), that is the basis for the stop and search, which is an issue of law for the judge. It’s irrelevant before the jury, who determined the issue of factual guilt based on the standard of beyond a reasonable doubt.

  4. j a higginbotham

    Sorry, i meant in all or most cases; your [five - 2 =] links had one raw, one burning, one not clear.

    1. SHG Post author

      There is no survey that I’m aware of that would answer that question, and I’m not particularly convinced it would matter, as the answer seems more likely to be influenced by what was found than what, if anything, was smelled. Remember, the cop doesn’t have to explain it until afterward.

      1. John Barleycorn

        Well the olfactory nasal hair stick test comes to mind. But this would involve officers suffering unnecessary pain during the plucking of their nostril hairs which would undoubtedly spike workers composition claims across the country and cause another Great Depression.

        But on a more serious note perhaps a volume measurement metric of say cubic yards of air between the suspecting officer
        and nefarious suspect?

        The court could even put a catchy phrase like BTU’s (blunts tempest for the unrestricted search) on it.

        So seeing as though a classic late ’70 sedan has about 33.333 cubic yards of cabin air volume suspecting officers would have to be within a distance that encompasses less than one tenth of that cubic volume of air to go with olfactory sense alone.

        Unless they are in Humboldt County then the olfactory BTU’s test would be decreased by a hundred fold as a new crop of five hundred clones could be sending their mothers scent through the red woods in all sorts of deceptive ways.

        This metric would not apply to freebased cocanine or methamphetamines. Then the tear duct and saliva gland overlay of thyroid glandular anticipation in direct correlation to the officers heart rate, persperation, and over all pupil reaction self administered via the review mirror may be used as an objective hunch but only if he/she can demonstrate that they lied on their academy entrance exam.

          1. John Barleycorn

            There is some science to it.

            But if you really want to go down the olfactory science trail.

            All searching officers involved in a felony search based on “smell” alone should have to swirl around some deep phlegm and cough up a 30ml lugie into an evidence bag after they restrain the subject and prior to beginning the search.

            If they turn up felonious quantities of contraband and make an arrest they must also submit themselves to a prick test blood sample after their shift to rule out their own potential drug use and submit that into evidence as well.

            Somewhere there about you might begin climbing the ladder to the objective slide without too much infringement on the arresting officers.

            Absurd world we are living in really.

            1. Brett Middleton

              Too much trouble. There is a simpler solution. If cops want to take the place of drug dogs, they should have to answer the same kinds of questions put to dog handlers regarding training and certification. There could be a presumption that the officer’s testimony is unreliable if he fails to show evidence of having training or certification.

              Wouldn’t the defense do the same thing if fighting a speeding ticket? Ask about the maintenance and calibration records of the radar gun, if one was used, or ask how the officer determined the speed of the offending vehicle and what training he had in judging speed in that fashion? If he used the speedometer of his vehicle, then wouldn’t we ask what proof he had that the speedometer of the cruiser was accurate?

              What fun the cops could have with that kind of training. Just imagine a room full of automobiles and other objects, with cops prowling around and alerting on the ones that contain weed. And they’d have the great advantage of not requiring a handler, though leashes might be appropriate, eliminating any concerns that they were cued.

    1. Bill O'Brien

      You’re right. The police almost always state in their report what their basis had been for pulling the guy over; but there’s always time for fudging the PC or RS for the stop (or search) after the bales of weed are found. .

  5. Fubar

    Frankly, it seems as if a rule is needed, as dependence on the judge’s sensibilities leads to both wildly divergent rulings such as those in Virginia, and makes individual freedom almost entirely dependent on judicial bias, with essentially no means of effectively challenging the credibility determination.

    But what rule?

    If only such a rule were so readily articulated as Dr. Samuel Johnson’s ancient rule of word usage, to which you have faithfully adhered here: “Madame, you smell. I stink.”

    The policeman smells, or claims to smell, marijuana. When he discovers marijuana, the marijuana plausibly stinks. When he does not, blind judicial credulity certainly stinks, as does the policeman’s credibility with everyone except the credulous judge. Unfortunately, in that latter case typically no arrest follows, so no judge hears the incredible testimony.

    Therefore those of us bereft of spiffy blue uniforms or handsome black robes smell a rat.

    Would a procedural rule for hearings on probable cause limit the damage that the incredible policeman and credulous judge can do? Establishing a record of expert testimony on the limits of human olfactory perception would at worst be amusing. At best it might limit the admissibility of evidence claimed to be found in “plain smell”.

    The problem is at least momentarily beyond my ken, and that stinks too.

  6. Robert Hine

    Isn’t the current “rule” generally (though not always) just the application of results oriented reasoning by the judge – where the credibility of the police officer’s testimony about smelling marijuana is determined by what s/he found when searching the vehicle? … or is this just something everyone who comments here takes for granted.

      1. Robert Hine

        At the risk of being told that I’ve missed the point and other than as a matter of principle, why is the default “rule” such a problem? I understand wanting to have a rule of application less dependent on results oriented reasoning than current majority practice, but is anything more principled likely to be effective, efficient and workable?

        1. SHG Post author

          The default “rule” is no rule, leaving us with the Virginia conflict. So yes, you miss the point. Is it possible to create a new rule “more principled [and] likely to be effective, efficient and workable” is the question raised by the post. I don’t know.

          The need for a rule that is more reliable than a cop’s ability to lie or a judge’s prejudice is clear, but it’s unclear whether it can be done.

        2. Brett Middleton

          The principle IS the point. No matter how effective, efficient, and workable it may be in terms of putting “bad guys” in the slammer, I don’t think we want to encourage a system where the police can conduct searches without probable cause, invent a cause after the fact based on their findings, and then have the courts accept that cause without question just because something was found.

          When we accept that because it “works”, we are also accepting that large numbers of innocent people will be subject to unjustified searches for each bad guy that the dragnet catches. Why even have a Fourth Amendment if results are the only thing that matters? Just issue each new cop a permanent general warrant along with his shiny new badge and save him the trouble of making up lies to get the evidence past the judges.

          1. SHG Post author

            Now you made me think I misunderstood the comment. If he’s suggesting that the default rule is the ends justify the means, we have an entirely different problem, and I was far, far too kind in addressing it.

            1. Robert Hine

              Actually, I was thinking that the most common judicial interpretation of the default rule was effectively, albeit not explicitly, that the ends justify the means and that a more principled legal formulation was unlikely to succeed. I know most of us are lawyers and have a bias towards legal solutions, but in this case, community action, adverse media and other extra-legal processes may be more effective in curbing police misconduct.

            2. SHG Post author

              That’s, how shall I put this kindly, idiotic.

              Look, I get it, you’re not a criminal defense lawyer, not even an American lawyer, and have zero clue what you’re talking about. That’s fine, but why then are you commenting? You bring nothing of use or interest to anyone else. It’s just gibberish.

  7. FN

    The other problem is THC content is so high in modern pot–I’m told :-) — that you can only do one hit. Two hits and you are worthless for some time. So there is far less to smell than 30 years ago. Not that it matters. Cops are gonna do whatever they wish. Judges are almost always gonna go along or get rebuked by an appellate panel. I have faith in the system.

  8. onlymom

    one more reason why a national database that tracks lies told by law enforcement in a judicial setting is mandatory.

    If the defense could respond ” well your honor the statement of officer “x” is all very nice. But here is “x” number of certified cases where officer x lied though his teeth.” maybe the judges and da’s would finally get off their lazy asses and prosecute for the perjury it is!

    1. SHG Post author

      If only there was a big red light over the witness stand that flashed whenever a cop told a lie so life could be as simple as you think it should be.

        1. SHG Post author

          The day may come when we have the technology for such a light. Of course, I would expect it will work just as well for defendants on the stand as cops.

  9. Brett Middleton

    So, if a magazine article such as “The Perjury Routine” was enough to kill “dropsy”, perhaps the answer lies with the Fourth Estate. Maybe some enterprising investigative journalist should trundle out to a pot-legal state like Colorado and do some experiments regarding human ability to detect the odor of weed on the highway and bust the myth.

  10. Jamie R

    You would think cops could also learn to smell illegal guns and/or gunpowder residue.

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