Brown & Little, P.L.C. » Police, Search and Seizure » Super-nosed Cops

Super-nosed Cops

I recently had a case where a police officer claimed he was able to smell a very small amount of unburnt marijuana. The amount was the same weight as a level teaspoon of salt, yet the officer pulled over the truck and performed a search of the vehicle without the client’s permission based solely on the odor of unburnt marijuana. The marijuana was located in the back of a closed camper inside two sealed plastic baggies inside a nylon gym bag filled with clothes. I have absolutely no doubt that the officer couldn’t have possibly smelled that marijuana. However, as a defense attorney few tools exist for me to challenge the claim on a scientific basis. I’ve only located one case where a court took issue with a super-nosed cop. It was in Ohio, and it involved more weed than in my client’s case. Because it was an Ohio State case, I could only cite it as persuasive (not controlling law) in Arizona. Therefore, I would have had to convince the judge that the officer was flat out lying in a motion to suppress hearing with no case law or scientific study to back my theory that the officer was not capable of such olfactory feats. That’s definitely not a tactic that had a great chance of success. Additionally, I don’t know of any expert that I could call to testify about the fact a human being could not possibly smell unburnt marijuana in that situation. Also, in Maricopa County, filing for such a hearing almost guarantees the plea offer is off the table. In our client’s case, he was looking at a lot of prison time. Fortunately, we resolved the case on other grounds (and the client is extremely satisfied), but I still wonder if I would have won the motion to suppress on the super-nosed cop issue.

What I’d like to be able to do is take the marijuana from the police evidence and put it in one car out of ten and let the officer try and pick the right vehicle. I’ve never heard of a judge allowing such a test, but I’ll keep looking and trying. Alternatively, I’d like some type of scientific test that could be used to call into question the officer’s ability. I think the American Bar Association, ACLU, or some other organization could do a great deal of good by funding a study that could be cited by attorneys to prevent such blatant violations of our 4th Amendment rights. Shouldn’t marijuana be of comparable odor to something else that would allow meaningful comparison? I can’t smell unburnt scented candles or bottles of cologne riding around in people’s trunks. To my knowledge, no such study or test exists, and without it, I don’t see any indication that judges are suddenly going to start realizing the officers aren’t being honest (or alternatively stop pretending it is plausible).

If I’m wrong and this officer could smell such an incredibly small amount of pot through plastic baggies, metal, rubber, nylon, glass and any other materials blocking his nose from the weed’s odor, then why isn’t this officer simply allowed to walk around parking lots all day pointing to vehicles that contain marijuana? Why do we have police dogs if officers can smell as good as if not better than our four-legged friends? How many people have been subject to search and then released when nothing is found? In my experience, this is very common among poorer people, especially minorities, and it certainly doesn’t help instill confidence in police officers. Most importantly, I wonder how many people are in jail because of some dishonest officers who are willing to testify that they smelled something that they didn’t. You can argue that the ends justify the means, but if officers can tell “little white lies” to win cases, when does it stop? In case you think that I simply have a problem with police officers, my father was a police officer and specialized in marijuana interdiction for many years. I don’t think all cops are willing to lie to make a case. I just find it disheartening when I meet the ones that do.

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3 Responses to "Super-nosed Cops"

  1. Samuel A Malat says:

    http://www.dailybusinessreview.com/PubArticleDBR.jsp?id=1202474796981&rss=dbr is an article on unburnt pot smell in NEW York that resulted in dismissal. Then again, New York takes the illegal immigrants that Arizona is trying to get rid of. Anyway, I lost a case, but won a standing ovation, from a municipal court case where a police officer claimed that he saw a joint butt in an ash tray when the ash tray was in a monster truck that took a ladder to climb into. If I was not personal friends with personal friends of the judge, I was told that I would have been held in contempt for putting a chair on top of the defense table to demonstrate the height of the truck since the judge was too lazy to walk outside to see the truck. (Actually, I could almost walk under the thing) Welcome to the world of criminal defense, it is only TV shows and movies where motions to strike clearly defective evidence is suppressed. My favorite saying at parties is that there is more science fact in an episode of Stat Trek than there is in a season of CSI. There is certainly more correct legal reasoning there too. Sad, but true.

    The worst is that there are so many innocent people convicted, subscribe to theinnonceproject and what is left of your hair will be pulled by your own fingers before it hits the floor.

  2. Donte Russo says:

    What I smell about the cop I wouldn’t say other than he smells like “s@@@%%” Maybe there is some type of study on the smelling capabilities of a human. I am sure there is some scientific data some were. It is sad to see a judge even began to believe this crap. It is also sad that our justice system would allow a search based on smell in such a small amount. I bet that judge could not have smelled it or is he smoking it? We should just all become Fascist so we don’t die from stress having to deal with this crap.

  3. […] Balko (from awhile back, I know), a cool libertarian law blog on criminal defense in Arizona. A sampling: I recently had a case where a police officer claimed he was able to smell a very small amount of […]

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