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.”