Short Take: Judge Has A Poignant Epiphany

John Wesley Hall found a decision out of the Southern District of Indiana that was simultaneously so obvious and so shocking as to bring a smile to even a jaded old criminal defense lawyer’s face.

The fact determination at issue in this case is one that necessarily must be determined by the Court based on its real world experience and common sense applied to the evidence. Officer Hiser cannot say whether the windows of his or Gray’s vehicles were rolled down and Gray points out persuasively.

The Court agrees with Gray that it is incredible that Officer Hiser—who self-admittedly does not have a heightened olfactory system—could smell the scent of two resealable sandwich sized plastic baggies of unburnt marijuana coming from a moving vehicle when patrolling in his cruiser. This occurrence is not only contrary to any common experiences, but is “implausible” and seemingly “contrary to the laws of nature.” … While the Seventh Circuit has held that “the scent of burning marijuana alone, if detected,” can justify a Terry stop, …, decades of appellate cases discussing an officer smelling raw marijuana entailed physical characteristics—like proximity to, and amount of, marijuana. …

What Chief Judge Tanya Walton Pratt may not have realized, being a federal judge and hence breathing the rarified air of clean courthouses rather than being forced to smell the unpleasant odor of sweaty bodies and filthy floors, is that claims such as the one she found totally full of malarkey are routine in state courts, where most pot cases go and most suppression motions are denied.

The dearth of appellate caselaw considering—let alone upholding—Terry stops solely based on an officer smelling three ounces of raw marijuana emanating from two small ziplocked sandwich baggies located under the front seat of a moving car, while he drives his own vehicle, supports a finding of incredibility of Officer Hiser’s testimony as a matter of law. Cf. People v. Heath, 214 A.D.2d 519, 520-21, 625 N.Y.S.2d 540, 541 (1995) (“The arresting officer’s testimony that he observed defendant exchanging a 2-inch glass vial with a dark top, from a distance of approximately 74 feet, from a moving patrol car, after dark, is, in our view, contrary to common experience and, as such, was incredible as a matter of law and did not support the verdict.”). For this reason, the Court grants Gray’s Motion.

Why aren’t there a wealth of thoughtfully written opinions about the ridiculous claims of police smelling unburnt marijuana hermetically sealed from a distance of three miles as the cops are driving in the opposite direction at 79 miles per hour? Because the judge can just mutter “motion denied” as the case moves to trial.

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.

Judge Pratt seems almost surprised that the prosecution brought this ridiculous claim to her, as if any cop had such a magical ability to smell weed as did Officer Hiser. What’s surprising is that she appears unaware that there are few appellate decisions because these flagrant lies get the nod and wink. Hey, the cop found the weed even if his story was total crap. Take the hit, defendant.

Then again, if “this occurrence is not only contrary to any common experiences, but is
‘implausible’ and seemingly ‘contrary to the laws of nature,’ that would make Officer Hiser a lying liar cop who lied to the court. C.J. Pratt wasn’t willing to go where the “laws of nature” would take her if she chose to confront the case put before her. At least she suppressed, which is far better than most judges faced with that utterly common experience of a ridiculous story about the “poignant” smell of unburnt marijuana.

13 thoughts on “Short Take: Judge Has A Poignant Epiphany

  1. B. McLeod

    As we get more people on the bench who are familiar with marijuana and its properties, such rulings will likely become more common.

    1. SHG Post author

      Most people on the bench before possessed a rudimentary knowledge of smell. They just didn’t care much if the odor of their rulings were unpleasant. Sorry. Acrid.

  2. Sacho

    The cop might be safe here. Has violating the laws of nature been clearly estanlished as unconstitutional?

  3. Drew Conlin

    I said this in response to you tweeting Mr. Greenfield.
    It’s the old David Letterman joke where they blindfolded the drummer gave him a food to taste and he would then give the expiration date…. he was always right. What makes it funny is the obvious absurdity.
    The idea that any cop could smell pot under those circumstances is absurd_ but not at all funny I know to the persons caught in the absurdity.

  4. RT

    Of course the defense could argue the officer was confused because the defendant had just run over a skunk crossing the road.

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