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