Court Calls Bullshit On Cop Who Claimed He Could Smell Weed In Sealed Bags In A Moving Car From His Own Moving Cruiser

from the STEAMED-HAMS-but-it's-this-cop's-story dept

It doesn't happen nearly often enough, but it's always enjoyable to watch a court lay the smackdown on a law enforcement officer's literally unbelievable assertions. And this case [PDF] -- via FourthAmendment.com -- contains a claim from a supposedly trained and experienced officer that's so ridiculous, the court has no choice but to discredit his testimony completely.

Indianapolis police officer Daniel Hiser performed a traffic stop that resulted in the discovery of marijuana and a handgun in Davon Gray's possession. But it's the events leading up to the stop that triggered the court's BS detector -- events that include Officer Hiser's apparently miraculous olfactory sense.

Officer Hiser is surprisingly humble about his superhuman gift, something that has served him well during his years as a law enforcement officer.

Though Officer Hiser has never had his sense of smell tested and does not generally consider his sense of smell extraordinary, he estimates that he smells raw marijuana at some point during approximately a quarter of the traffic stops he conducts.

But any officer with similar training ("Officer Hiser received a 'couple of hours' training on the appearance and odor of multiple [drugs]...") could be expected to smell marijuana in a stopped car with its windows down. Officer Hiser, however, can smell it in moving vehicles with their windows up located a few car lengths away from his impressive nose.

At about 3:30 p.m. on January 11, 2018, Officer Hiser was patrolling in his police cruiser in the East District when he turned south onto Arlington Avenue from 31st Street. As he moved into the left lane of Arlington Avenue behind a Dodge Stratus driven by Gray, Officer Hiser testified that he could smell the strong odor of raw marijuana. Officer Hiser believed the scent to be coming from the Stratus, so he continued southbound to try to verify that this vehicle was the source of the aroma. (Filing No. 72-1 at 5.) While cars were not "bumper to bumper," there was still some traffic present. Several blocks later, around 23rd Street, the Stratus moved into the right lane, and Officer Hiser could no longer smell the marijuana odor. Officer Hiser then switched lanes and the fragrance returned. Id. The Stratus then slowed, turning into an Express Mart at the corner of 21st Street and Arlington Avenue. Again, as the Stratus departed the lane, Officer Hiser testified that the scent vanished. At this point, Officer Hiser decided to stop the vehicle and pulled behind the parked Stratus, initiating his emergency lights and siren.

Hiser could not state with any certainty whether he had ever performed this superhuman feat of olfactory awareness prior to this stop. He also could not state with any certainty whether his cruiser's windows were down or whether Gray's windows were down. The 3.59 ounces of marijuana found in the car Hiser claimed smelled like weed was located under the front seat inside resealable plastic bags.

Yes, courts are supposed to defer a bit to "trained" and "experienced" officers and their assertions about their ability to determine whether something is reasonably suspicious or objectively innocuous. And courts far too often reward unreasonable assertions made by cops with good faith passes or denials of motions to suppress.

But the court isn't impressed by Hiser or his freak-of-olfactory-nature superpowers. You have got to be fucking kidding me, says the court.

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."

Unsurprisingly, there is exactly zero precedent that supports Hiser's "if I smelt it they probably were in the process of, um, dealting it" theory of reasonable suspicion. (Emphasis in the original.)

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 a moving car, while he drives his own vehicle, supports a finding of incredibility of Officer Hiser's testimony as a matter of law.

In fact, it can only find precedent that quotes an officer just as full of shit as Hiser.

"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."

Away goes the stop, which means away goes the evidence. And without the evidence, the government has nothing, which it has acknowledged by dismissing Gray's indictment.

It's already impossible to believe cops smell as much marijuana as they do -- something that handily allows them to start tossing vehicles and patting down vehicle occupants without troubling themselves with a warrant. This cop just took the lie too far.

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Filed Under: 4th amendment, daniel hiser, davon gray, smell, traffic stop, warrantless search


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  • icon
    Stephen T. Stone (profile), 21 Jul 2021 @ 8:05pm

    I smell something here, but it ain’t marijuana.

    reply to this | link to this | view in chronology ]

  • icon
    Bill Silverstein (profile), 21 Jul 2021 @ 9:15pm

    There is one thing I don't understand.

    I can't understand how he could have smelled the pot over the bullshit comming out of his mouth.

    reply to this | link to this | view in chronology ]

  • icon
    Mononymous Tim (profile), 21 Jul 2021 @ 10:32pm

    The drug sniffing dogs are even jealous.

    reply to this | link to this | view in chronology ]

  • icon
    Scary Devil Monastery (profile), 22 Jul 2021 @ 12:09am

    Why am I not surprised?

    ...at yet another bullshit story coming out of the mouth of a US cop defending some rather blatant overreach?

    We're talking about a nominal adult here. This is the sort of stunt a five year old pulls in desperation trying to explain away a smashed vase with the boogeyman coming out of the closet for a spot of selective vandalism.

    Either officer Hiser is lying through his teeth - in front of a judge - which rather means he should be banned from any form of law enforcement job...or he is delusional and shouldn't be allowed to bear badge and arms or steer any sort of powered vehicle lest he start firefights and car chases with his next hallucination.

    reply to this | link to this | view in chronology ]

  • icon
    Jeff Green (profile), 22 Jul 2021 @ 12:32am

    When do we expect

    The perjury prosecution?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 22 Jul 2021 @ 4:54am

      Cops don't lie, they give least untruthful answers

      It's a cop so I'd expect perjury charges for this case to be filed alongside similar charges against other police(the courts like to get them all out of the way in one-go you see) on or around the 35th of Never the next leap year, maybe the 43rd if the court is particularly backed up that month.

      reply to this | link to this | view in chronology ]

  • icon
    velox (profile), 22 Jul 2021 @ 1:29am

    So what really happened here? An unanswered question is why the officer targeted the Stratus in the first place.
    Likely this was a laughably inept attempt at parallel construction.

    reply to this | link to this | view in chronology ]

  • identicon
    dickeyrat, 22 Jul 2021 @ 4:15am

    But, but...isn't this why any Good Patriot should ALWAYS Back The Blue?? Whether lying about bodily capabilities (wouldn't it be fun to hear what cops tell prospective fuckmates about their physical dimensions?), or anything and everything else they regularly and reflexively lie about? Our Brave, Proud Po-Lice are there to help lead the historic Amerikan jack-march into the bowels of Fascism, aided by racism, other non-racial medieval prejudices and reefer-madness! Sieg Heil MAGA!!

    reply to this | link to this | view in chronology ]

  • icon
    Ceyarrecks (profile), 22 Jul 2021 @ 6:19am

    Self-Own Much?

    If said smell was so strong, this suggests proximity,... as though said bag was WITHIN the cruiser to begin with,... and as usual, said Law "Enforcement" Officer was merely projecting onto "other suspected moving car" to take away attention from themselves.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jul 2021 @ 9:37am

    It all depends upon how you describe things

    and what you leave out of the description.

    For example, I could imagine an officer truthfully stating "Whenever I was behind the vehicle, I smelled marijuana. But whenever the vehicle wasn't in front of me, I detected no such odor."

    But what's not mentioned is the blunt he held up to his nose whenever the vehicle was in front of him....

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jul 2021 @ 10:07am

    "Then all the volatile compounds changed lanes."

    reply to this | link to this | view in chronology ]

  • icon
    Darkness Of Course (profile), 22 Jul 2021 @ 12:23pm

    Cop's nose stuck in own shorts.

    This cop just took the lie too far.

    Ah, no. He pretty much admitted this is about how far he always takes the lie every single time.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jul 2021 @ 4:29pm

    Wait. 3.59 oz in two sandwich baggies???

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Jul 2021 @ 11:58am

    innocuous because sometimes one-liners get in...

    weirdly


    speaking of weird, where IS Geigner of late?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Jul 2021 @ 2:12pm

    Brady list

    welcome the next contestant to the "Brady list" games...
    with the unusually high 1/4 stop count of "i smell marijuana", this should bring into question all of his other stops.

    reply to this | link to this | view in chronology ]

  • icon
    unforgiven (profile), 26 Jul 2021 @ 3:00pm

    He belongs in jail

    He violated our trust in law enforcement and rights. He belongs in jail. Anyone holding such a position of public trust needs to live up to high standards. He failed, her lied, he violated constitutional rights. He belongs in jail.

    reply to this | link to this | view in chronology ]


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