Federal trial judge finds police claim to have smelled marijuana implausible
Because possessing marijuana is a crime, its scent can provide the police with probable cause to search your car or to get a warrant for your home. Though I’m sure most police officers honestly report the facts of their searches, I’m equally sure that there are some bad actors who justify bad searches by falsely testifying that they smelled marijuana. It is very difficult for courts to pick the liars out from the truth tellers and so it is rare to see a decision dismissing an officer’s claim to have smelled marijuana.
Last week, however, a federal trial judge in Massachusetts found an officer’s marijuana smell story implausible enough to hold against the government (PDF):
An odor of marijuana is often sufficient to justify the warrantless search of an automobile. See Staula, 80 F.3d at 602 (“The case law is consentient that when a law enforcement officer detects the odor of marijuana emanating from a confined area, such as the passenger compartment of a motor vehicle, that olfactory evidence furnishes the officer with probable cause to conduct a search of the confined area.”). I suspect that not only lawyers and judges know this, but police officers do, too.
After hearing the testimony of Trooper Morris, I do not credit his testimony that he “detected a faint odor of … raw marijuana coming from the interior of the vehicle.” (Tr. at 18.) Trooper Morris’s testimony is telling as to his true reason for searching the car.
Q. After searching the vehicle and not finding any marijuana, did you remain suspicious?A. I did.Q. Why is that?
A. Based on the inconsistencies in their story. And I was concerned that there were — there was something in the car that I was missing or I wasn’t finding.Q. And you remained concerned because you could still detect the odor?
A. Not just the odor, just — like I said, their story was — their stories weren’t consistent; they didn’t sort of make sense; they weren’t reasonable. So I believed there was something hidden in the car.Perhaps Trooper Morris thought he smelled a faint odor of raw marijuana; perhaps the wish was father to the thought. On the evidence, I am not persuaded there was such an odor, and the government has failed in its burden on that factual issue.