Passing the Smell Test

So judge, tell me when you last smelled a bunch of fresh, raw marijuana on the street?  What?  Never?  You mean you never smelled the “pungent odor” that you keep finding credible?  Not even once, and yet you put your judicial seal of approval on the same words uttered by a cop to justify his warrantless search time after time?  Not even once.

From the Fourth Amendment Blog, a district court in Kansas approved a curious search in United States v. Hairston:

Defendant also contends that the officer’s statement that he smelled raw marijuana is not credible given that no raw marijuana was ultimately found in the vehicle. But the Court finds Trooper Walker’s testimony credible on this point. “An officer’s detection of the smell of drugs in a vehicle is entitled to substantial weight in the probable cause analysis.” Trooper Walker testified that he had been through two training classes and the Kansas Highway Patrol training academy, where he learned to detect the smell of raw marijuana. He also estimated that he smelled raw marijuana four to five times per month during traffic stops, in the course of his duties as a trooper. The fact that Trooper Walker did not ultimately find marijuana, and instead found cocaine, does not dissipate his credibility for purposes of the probable cause analysis.

The rationale isn’t entirely crazy.  After all, if the car held a substantial quantity of raw marijuana, which was since removed from the car, the smell could linger, right?  So you get the smell, giving rise to probable cause, but no pot. It could happen.

Except there is one small detail that’s simply assumed by the court, just as it’s assumed by judges in courts everywhere.  It’s become a mantra, so utilitarian and pervasive that it’s taught in cop school.  You see, burnt marijuana has a distinct odor, as anyone who has been to a concert or walked down a Manhattan street at lunch time knows only too well.  But raw marijuana is entirely different.  It has a “pungent odor.”  I know because every cop who has ever based his search on the smell of raw marijuana so testifies.

The last time I crossed a cop at a suppression hearing on this, the police officer testified that it had a “poignant odor.”  I asked the judge, “What did he say?”  The judge said, “poignant”.  I wanted to be sure that the judge picked up on that word.  The cop was a nice enough guy, a bit dumb but he hadn’t laid a hand on my client, so he was aces in my book.

Having had occasion over the years to discuss the smell of raw marijuana with those who are intimately familiar with the odor, and who are actively engaged in its packaging for purposes of transportation, and who know very well what they are doing, I’m informed that there is nothing to smell.

There is nothing particularly distinct about the odor of raw marijuana from that of many other types of cut vegetable matter.  What is distinct is the smell of vegetation emanating from a Nissan Maxima with ground effects on 168th Street and St. Nicholas.  Very few legitimate farmers reside there, and even fewer bring their work home with them.

But those engaged in the business have learned a trick or two.  They package their wares in heat sealed baggies, with the air sucked out of them, and then placed inside large tupperware containers, all for the purpose of making sure that there is no odor, pungent or otherwise, to be smelled.

And yet, whenever marijuana is found, you can bet your life that the officer will testify about how he smelled the pungent, or poignant, odor.  Even with the introduction into evidence of the packaging, the heat sealing, the whole shebang, all designed to make absolutely certain that no smell escapes, the testimony prevails.

Even if the defendant testifies that there was no smell, zero, zippo, nada, the testimony prevails.  Not only does the officer, with a nose that any dog would envy, smell something when there is nothing there to smell, but he can tell with sufficient certainty to establish probable cause that the smell is that of raw marijuana.  How does he know?  It’s pungent.

Over the years, certain mantras have come to be accepted as rote by the courts as facially sufficient to justify a search.  The trick is that the claims are irrefutable, lacking any basis in objective proof and entirely dependent on the subjective testimony of the officer.  This was the way with the old dropsy cases, which courts finally got tired of hearing and started rejecting.  Every street encounter used to involve a dropsy, where the defendant would discard a package of drugs upon seeing an officer approach, thus abandoning it for search purposes while entitling the officer, based on his observation of the dropsy, to arrest.  It was a great justification, and happened almost constantly.

But it rarely happens these days.  Is it because defendants stopped dropping things?  Nope. It’s because courts decided that they had enough of the lie, and stopped accepting it at face value.  The cops just pushed the envelope too far, and it became an embarrassment.  So now they have a few different allegations in their playbook to justify their searches, so they won’t fall back on the same one every single time.  Cops learn too, you know.

Who’s to say that the cop didn’t smell what he says he smelled?  After all, he was there and he says so.  And a cop wouldn’t lie.   After all, it’s not like the judge has any clue what the raw marijuana, packaged in heat sealed baggies within airtight tupperware containers might smell like.  So he just has to take the cop’s word for it.  And that word is “pungent.”  Or “poignant.”

9 thoughts on “Passing the Smell Test

  1. Buford Gooch

    Having partaken, in a previous life, of the evil herb, I can attest that it does have a very specific odor, and the stronger the pot, the stronger the odor. I could almost always tell good pot from mediocre by smell. And, yes, it does smell a lot like oregano, but the stronger marijuana has an overlying smell that seems unique.

  2. SHG

    One point of distinction: Fresh raw marijuana would not be the sort that would come into your hands as a purchaser/consumer.  By that point, it would have been dried and cut.  That process produces a substance with a far more malodorous scent.

  3. T.Man

    Maybe a solution would be to have a package of this substance as you described, and put it in a plain paper bag and see if the judge or prosecutor could smell it. I wonder how then the super police snout theory would hold up?

  4. SHG

    I, as well as pretty much every trial lawyer I know, has tried to get a judge to bite on a gambit like this.  I’ve tried to play the game with the witness, using other objects like an onion in a heat sealed bag.  You name it, and somebody has tried it.  I’ve never heard of a judge falling for it, except of course the old (then-new) glove gambit in the OJ trial.

  5. John Neff

    Does the discovery of the cocaine count as serendipitous? If the officer were sagacious there would be probable cause. If it was dumb luck and there would be no probable cause.

    How do the courts test for serendipity and sagacity?

  6. JDLaw

    So, I am 50 and have not smoked or held marijuana in over 25 years. My wife, slightly younger than I has never (ever) done anything illegal in her life. Yet, on January 8, 2010 while driving on the interstate, a State trooper pulled me over (the cruise was set to 5 over). I was a little amazed to be pulled over.

    Then we waited 20 minutes for back-up to arrive. The police officer then asked me to get out of the car to inform me that he had smelled marijuana coming from inside the car. They handcuffed me, pulled my wife out and made us stand outside in 6 degree Fahrenheit weather for about 30 minutes while searching for the elusive marijuana — which of course they were never going to find (to their credit, at least they didn’t plant something illegal during the search).

    Now, my wife and I are both attorneys. My wife, who is black (I am white) is also a law professor, has lots of experience teaching and researching 4th amendment extensively. She of course tells me to just forget it — the exclusionary hearing is your only remedy — so innocent people simply have zero remedy. Her take on the story is that since she was sleeping in the back – it was only when she sat up, that the DWB (“driving while black”) situation occurred when a groggy eyed black woman equaled probable cause in and of itself. Continuing, that although a 1983 action was factually in order, you would never get any judge to buy into it.

    I am, however, not as satisfied. I really don’t give a crap about standing in the cold without a jacket (my wife with the jamaican blood was the one suffering) but the final answer the cop gave me was, “well, we are trained professionals in recognizing the ‘poignant order’ of raw marijuana and maybe it could have been your ‘grapefruit.’”

    I want to take the cop on his word that he smelled “grapefruit” and that “in his mind” equated to probable cause. I want to send the police a “cease and desist” demand that the police will stop using the perceived smell of “raw” vegetable matter alone to constitute the right to arrest or search – perhaps followed by a declaratory judgment action if the police do not reply. The hurdle then will first be standing cas in controversy, but if we pass that, it will then hopefully get similar analysis to United States v. Humphries, 372 F. 3d 653 (4th Cir. 2004) and/or United States v. Cephas, 254 F.3d 488, 495 (4th Cir. 2001) that smell alone is not the basis, but the totality of the circumstances. I would include then the issue that marijuana really only smells like what-ever kind of mold or musty order that is consistent with its packaging and preservation. Only dogs can readily distinguish marijuana from other vegetable matter.

    Any thoughts?

  7. JDLaw

    Sorry for the typos “oder” not “order”
    but seriously, any thoughts? My wife says I’m crazy for even questioning the cops authority. Is this just something that we live with.

  8. T. Mann

    Questioning the cops authority, yes all the time this is from a former L.E.O. sorry for what happened but we must question this type of activitie, at lest I feel we should.

  9. SHG

    I think you give too much credit to the dogs.  Unfortunately, this isn’t the place to get legal advice, and particularly free legal advice.  About the only thing I can tell you from a practical aspect is that you will likely find a very hard time finding an attorney to represent you on a contingency fee.  It is most likely that the case will never make it past summary judgment against you.  If it did, the damages would be minimal.  And you will be far more miserable when you’re done than now.

    Does this suck?  You betcha.  Welcome to our very hard, cold, nasty world.  The innocent victim has no meaningful recourse.  Maybe your wife can make good use of the experience if one of her students ends up a judge one day.  And the people wrongly stopped by cops are legion, but we never hear of them for there is no good place for the grievance to be redressed.  Your story happens all the time, I’m sorry to say, and aside from filing a complaint against the cop for the wrongful treatment, there is really no other reasonable course.

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