Officers Said They Smelled Pot. The Judge Called Them Liars.

[rangerrebew]

Officers Said They Smelled Pot. The Judge Called Them Liars.

 
By Joseph Goldstein

    Published Sept. 12, 2019
    Updated Sept. 13, 2019, 7:57 a.m. ET
 

Police officers can often justify a search with six words: “I smelled an odor of marijuana.”

Courts in New York have long ruled if a car smells like marijuana smoke, the police can search it — and, according to some judges, even the occupants — without a warrant.

But in late July, a judge in the Bronx said in a scathing opinion that officers claim to smell marijuana so often that it strains credulity, and she called on judges across the state to stop letting police officers get away with lying about it.

https://www.nytimes.com/2019/09/12/nyregion/police-searches-smelling-marijuana.html

[Maj. Bill Martin]

It's behind a paywall...but perhaps the reason officers smell pot so often is that so many people are smoking pot.

If there is solid evidence that cops are wrong -- that people are getting searched because their car smells like pot, but the officers don't actually find pot, then that's fine.  I'd certainly be in favor of excluding evidence found during a search in which "smells like pot" was the justification, but no pot was found.

But a general rule that "smells like pot" isn't enough to do a search seems like it is going overboard.

[roamer_1]

It's behind a paywall...but perhaps the reason officers smell pot so often is that so many people are smoking pot.

If there is solid evidence that cops are wrong -- that people are getting searched because their car smells like pot, but the officers don't actually find pot, then that's fine.  I'd certainly be in favor of excluding evidence found during a search in which "smells like pot" was the justification, but no pot was found.

But a general rule that "smells like pot" isn't enough to do a search seems like it is going overboard.

So they got done smokin weed, and threw the roach out the window... cop pulls them over, the window opens and smoke roils out... Smells like dope. But if he finds no dope, throw the search out? Really?

[Cyber Liberty]

How does one go about disputing a cop "smelled pot?"  It sounds to me like any cop, anywhere can create probably cause at will.  If I was Judging a case where the triggering event was a cop "smelled pot," I'd throw it out whether or not actual pot was found in a subsequent warrantless search.

[roamer_1]

How does one go about disputing a cop "smelled pot?"  It sounds to me like any cop, anywhere can create probably cause at will.  If I was Judging a case where the triggering event was a cop "smelled pot," I'd throw it out whether or not actual pot was found in a subsequent warrantless search.

I don't know. I can think of a lot of things where the cop would have to be taken at his word.

Although, I like the idea of detainment on site, with someone running a warrant on over.

[corbe]

   If you are driving under the influence of Narcotics, booze or even pot you are putting all drivers that share that road at risk and you should be punished, with that being said and back on Topic, this 'smelled pot' thing seems similar to a PI (Public Intoxication) in Texas, your word against the cops, resulting in a mandatory fine and a minimum of 12 hours in the local County Cooler. 
   It's a tool used more often in Texas than I'm comfortable with.

[roamer_1]

   If you are driving under the influence of Narcotics, booze or even pot you are putting all drivers that share that road at risk and you should be punished

Not if you're driving on the sidewalk. 

[Cyber Liberty]

I don't know. I can think of a lot of things where the cop would have to be taken at his word.

Although, I like the idea of detainment on site, with someone running a warrant on over.

It's a well-known fact that cops never lie.

[roamer_1]

It's a well-known fact that cops never lie.

Well, detain onsite to wait for a warrant, or a call for backup as a second witness seems reasonable.

[Cyber Liberty]

Well, detain onsite to wait for a warrant, or a call for backup as a second witness seems reasonable.

Sounds reasonable to me too, if a warrant can be had in a reasonable time.  An hour during a traffic stop in the middle of July in AZ is not a reasonable time. 

[roamer_1]

Sounds reasonable to me too, if a warrant can be had in a reasonable time.  An hour during a traffic stop in the middle of July in AZ is not a reasonable time.

Patrol cars are wired by wiffy... tied direct to LEO and Justice. Not too hard to have an intern or office girl handle the work and send the document by email. A little rubber-stampy, but technically proper. And where it can't be expedited, backup, bodycams/sound would have to do.

Most importantly, there is a record before the fact that he smells weed, simply in calling in for the assist.

[catfish1957]

It's a well-known fact that cops never lie.

Considering the trends of marijuana legalization and decriminalization, am suprised law enforcement would put his much interest into a pot bust.

That is unless there is suspicion of harder drugs, or other more serious offenses.

[Wingnut]

If your driving 25 in a 65 mph zone and you have a 24 twinkie wrappers on the passenger seat and a white unknown substance running down your chin,  you might be driving under the influence.

[Cyber Liberty]

Considering the trends of marijuana legalization and decriminalization, am suprised law enforcement would put his much interest into a pot bust.

That is unless there is suspicion of harder drugs, or other more serious offenses.

This is true.  Lying about smelling pot doesn't seem worth the effort anymore.

[corbe]

   You might be too stoned to drive if you're waiting for the Stop sign to turn green.

[Maj. Bill Martin]

This is true.  Lying about smelling pot doesn't seem worth the effort anymore.

But the reason you'd like isn't because of pot -- the lie means there wasn't pot there at all.  You'd lie about smelling pot just because you'd want a justification to search the car to see what else you might find, or just to harass the people in the car.

[Maj. Bill Martin]

Well, detain onsite to wait for a warrant, or a call for backup as a second witness seems reasonable.

That's kind of circular, though.  Granting a warrant based solely on an officer's claim that he smelled pot is no different from the cop being able to do it on his own without a warrant. In both cases, the only evidence is the cop's claim to have smelled pot.

Again, I'm not advocating for "I smelled pot" to be an insufficient justification in general.  But if I were a judge, and someone was trying to suppress evidence of a search that didn't find pot, I'd want to know how often this cop has stopped drivers in the past for smelling pot, but not found any pot in the car.

[DCPatriot]

   You might be too stoned to drive if you're waiting for the Stop sign to turn green.

ROFL!

The route home from my buddy's house has a 25mph stretch where they installed a 'STOP' sign warning in the shape of a stop sign about 200 feet before the actual 4-way stop intersection.

One night last year, I came to a complete stop at the 'Warning' sign.   

[InHeavenThereIsNoBeer]

So they got done smokin weed, and threw the roach out the window... cop pulls them over, the window opens and smoke roils out... Smells like dope. But if he finds no dope, throw the search out? Really?

No.  The cop's got a couple roaches in his pocket for just such an occasion.

[roamer_1]

That's kind of circular, though.  Granting a warrant based solely on an officer's claim that he smelled pot is no different from the cop being able to do it on his own without a warrant. In both cases, the only evidence is the cop's claim to have smelled pot.

Again, I'm not advocating for "I smelled pot" to be an insufficient justification in general.  But if I were a judge, and someone was trying to suppress evidence of a search that didn't find pot, I'd want to know how often this cop has stopped drivers in the past for smelling pot, but not found any pot in the car.

@Maj. Bill Martin
I am more interested in the claim recorded before the fact of the search. Not perfect I know - But certainly more substantiated than an officer's claim after the fact. Witnessed by another officer, all the more so, though collusion is still possible.

Personally, I would allow no search of my property without a warrant, which I think is the only proper recourse. But the state has written a law providing for an unconstitutional search, so far upheld. So there it is.

As to the smell of pot without finding pot, that can happen all the time - pot makes an interior reek just as much as cigarettes do... I can get in a car and immediately know whether the owner is a pot user, with the first whiff. The smell is a sure indicator that the owner is involved with pot, and that it is smoked regularly in the vehicle. Where to go from there is up for grabs, but that much is certainly true.

[Cyber Liberty]

But the reason you'd like isn't because of pot -- the lie means there wasn't pot there at all.  You'd lie about smelling pot just because you'd want a justification to search the car to see what else you might find, or just to harass the people in the car.

I would not, but I'm sure "lying" is a part of the academy training.