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Appeals Court Says It's Entirely Possible For Cops To Pinpoint Marijuana Odors In Moving Cars

from the also:-finding-contraband-will-salvage-unbelievable-claims dept

Cops are still claiming they can detect the odor of marijuana in moving vehicles. Not only that, they claim they can pinpoint the source, even when in traffic.

Not every court has been supportive of this speculative fiction. A federal court in Indiana found an officer's testimony literally "incredible" when he claimed he could smell the odor of marijuana emanating from two sealed plastic bags located inside a car traveling in heavy traffic with its windows up. The court said this testimony was not only "implausible" but "contrary to the laws of nature."

The same can't be said for this decision from the Eighth Circuit Appeals Court, which originated in Iowa. The same claims were made here by two officers, who used their apparently superhuman olfactory senses to locate weed in a passing car -- one that similarly travelled through heavy traffic. In this case, both the cop car and the targeted car had some windows down. But even so, it's difficult to believe officers were capable of pinpointing the odor in traffic while dealing with "swirling winds."

The cops lucked out on this stop. They discovered some marijuana ash and an unsmoked blunt during the stop. They also recovered a handgun, which led to the federal charges Vernon Shumaker was hoping to have dismissed due to the apparent unreasonableness of this search.

Here's how the stop was effected, according to the Eighth Circuit's decision [PDF]:

On October 5, 2019, the officers were on patrol in a marked squad car. Officer Steinkamp drove the car, Officer Garrett sat in the front seat, and Officer Minnehan sat in the back seat. The squad car’s front windows were up, but its back windows were down. At 5:49 p.m., the officers were driving westbound on a city street behind a black sedan that had its windows up. According to weather records, the wind was traveling between 13 and 17 miles per hour. The officers did not smell marijuana while driving behind the black sedan.

As the officers approached a four-way intersection, they saw a red Chevrolet Impala traveling eastbound abruptly turn left in front of the oncoming black sedan. The Impala’s “passenger side window was down.” At the intersection, the officers turned right and started driving northbound on the same street as the Impala. Shortly after making the right turn, the officers “started smelling the odor of marijuana, and that’s what drew [their] attention” to the Impala.

The squad car was approximately 100 meters behind the Impala when the officers first smelled the odor. The Impala was in the left lane, while the squad car was directly behind the black sedan in the right lane. The officers did not believe that the black sedan was the odor’s source because its windows were up and they never smelled marijuana while following the black sedan before turning right.

Both officers claimed to have smelled burning/burnt marijuana. They also made other ridiculous claims -- ones ignored by the court.

The officers changed lanes and sped up to position the squad car close behind the Impala in the left lane. A black truck was immediately in front of the Impala. An SUV was farther ahead in the right lane. The road was busy at that time. The officers drove directly behind the Impala “for several blocks”—approximately 30 seconds—to “make sure that [they] kn[e]w for certain without a shadow of a doubt that [it was the] vehicle that has the odor of marijuana emitting from it.”

You can't travel "several blocks" in thirty seconds, not even if you're on a freeway. The cops either followed the car for several blocks or thirty seconds. They could not have done both. And they still insisted this method of wandering around in traffic allowed them to pinpoint the location of the odor.

The officers claimed the driver had been smoking and driving, thus justifying the search. The search uncovered no evidence of this claim.

In addition to the marijuana cigarettes, the officers also recovered a digital scale with trace amounts of marijuana residue on it and a loaded nine-millimeter pistol in the center console. They did not find embers or smoke in the ashtray or a lighter.

Expert witnesses on both sides offered their findings, which were contradictory. The court decided to side with the officers' expert, who claimed it was possible to pinpoint marijuana odors while driving in heavy traffic. But he also said this, which applies directly to this case:

He admitted that marijuana cigarettes are hard to smell if they are in a closed container and that none of the marijuana cigarettes found in Shumaker’s ashtray appeared to be burning.

The Appeals Court sides with the cops and lower court's findings. Why? Because the officers were consistent in their claims they smelled marijuana.

Videos of the stop show the officers making statements both before and during the stop indicating they smelled burnt marijuana coming from Shumaker’s car while driving behind him.

So what? This is like saying no excessive force was applied because officers kept chanting "stop resisting" while they attacked an unresisting suspect. A conclusion like this simply encourages officers to maintain steady chatter about suspected illegal activity whether or not they've actually observed any. As long as officers talk a good game on camera, courts can be expected to grant deference to their cover stories.

The court also says the ends can be used to justify the means.

“Officers Steinkamp, Minnehan, and Garrett testified consistently that they smelled burnt marijuana while driving behind Shumaker” and their testimony was “corroborated by their on-video statements, Shumaker’s behavior, Frye’s expert testimony, and the evidence recovered from Shumaker’s car.”

Well, I guess that's it. If an officer claims to smell marijuana -- even in situations in which it would seem almost impossible to do so -- and then finds marijuana, the stop and the search are justified. In the cases where the officer's nose has failed him and no contraband is found, the officer loses almost nothing by rolling the dice on this unsupported claim. People stopped but never cited or charged rarely sue. Lawsuits like these are mainly filed by people facing criminal charges. The court says the discovery of contraband excuses flimsy pretenses for stops and searches. And that's binding in this circuit.

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Filed Under: 4th amendment, 8th circuit, iowa, marijuana, police, probable cause, reasonable suspicion, smells


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  • identicon
    Anonymous Coward, 14 Jan 2022 @ 3:54pm

    seems like a more plausible explanation for the marijuana odor they were smelling was weed in the police car. They should be immediately taken to an appropriate clinic so their hair can be tested for marijuana metabolites and a blood draw taken to test for hallucinogens.

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

  • icon
    ECA (profile), 14 Jan 2022 @ 4:03pm

    one of these things is not like the others.

    Wonder what would happen if we stuck a Bag of Skunk, under the judges bumper, with a few air holes in the bag.

    If he can go 1 week and not get stopped, He has to reverse his opinion.

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

    • identicon
      David, 15 Jan 2022 @ 6:41am

      Re: one of these things is not like the others.

      Why would he get stopped? "Judge, I'd like to compliment you on the improvement in your choice of aftershave."?

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

  • icon
    Blake C. Stacey (profile), 14 Jan 2022 @ 4:33pm

    JFC.

    Nobody who says "marijuana cigarette" should be considered an expert.

    "The marihuana cigarette, or 'reef cockroach'..."

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

  • icon
    That One Guy (profile), 14 Jan 2022 @ 4:41pm

    Unconstitutional searches for all!

    The mists are clearing, I can see it now, overnight suddenly every cop in the eight circuit will be constantly smelling and commenting on the smell of marijuana whenever they're out of the station, because hey, with an 'the ends justify the means' ruling on the books why wouldn't they?

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

  • identicon
    Rekrul, 14 Jan 2022 @ 5:01pm

    Make the cops sit in their squad car with only the rear windows rolled down, 100 meters behind a group of cars, one of which has pot in a sealed container, and ask them to pick out which car it's in. After all, if they can do it in moving traffic with all the other odors that are present in such situations, surely it would easy for them to do the same thing in a parking lot with parked cars.

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

  • identicon
    Anonymous Coward, 14 Jan 2022 @ 5:38pm

    What were they smoking? The criminals I mean (cops and judge) because no burn was found in the car of this guy.

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

  • icon
    Koby (profile), 14 Jan 2022 @ 6:44pm

    A Mile Away

    Sometimes, Cheech and Chong are kind of obvious, even while driving.

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

    • identicon
      Anonymous Coward, 15 Jan 2022 @ 10:45am

      Re: A Mile Away

      Sometimes, out of the hundreds of stops during which you claimed you smelled marijuana, you actually find some marijuana.

      How people look is no reason for a stop.

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

    • identicon
      Anonymous Coward, 16 Jan 2022 @ 3:41pm

      Re: Are you stupid, racist, or both?

      Hey k-dawg last I checked "being obviously Latino" still didn't trigger probable cause. Not surprising that you you would misunderstand that part of the law given your demonstrated inability to understand a certain other 25 year old law.

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

  • identicon
    Dr evil, 14 Jan 2022 @ 8:18pm

    How to catch a lie

    10 identical cars in the parking lot.. all running, Windows up..nice fresh clean bodies. 2 have marijuana smells in them. Turn the dogs.. I mean cops, loose to determine which ones are fixed. Seperately. Get em bo5h cars, and go home.

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

  • identicon
    Christenson, 14 Jan 2022 @ 8:50pm

    Once upon a time...

    Once upon a time, I did smell marijuana from a passing car...but it was in smoke form, I was strolling on the side of the road in question, and there was only the one car.

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

  • icon
    Jollygreengiant (profile), 15 Jan 2022 @ 4:31am

    My POV

    When I'm riding my motorcycle through traffic, the smell of MJ from some cars is really obvious, you can smell it some 40-50 yards behind. If you smoke it a lot, as with tobacco, I bet your car will smell of it whether you're smoking at the time or not. So, I'm inclined to believe this, though I expect pinpointing the target would be more difficult from a car where you're not so exposed to the passing air.

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

  • icon
    That Anonymous Coward (profile), 15 Jan 2022 @ 5:09am

    Its so nice to see the entire system throwing out all of the rules as long as they get the 'bad guy'.
    People cheer because the bad men got put away, completely oblivious to the idea that they eventually will be someones bad guy & magically those rights they thought they had went out the window because some officers have been crossbred with bloodhounds & superman for the xray vision to see the pot in the double sealed containers inside moving cars in the middle of traffic.

    Pity the courts no longer seem to care that the cops are taking short cuts rather than doing the difficult job we pay them to do.

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

    • identicon
      Anonymous Coward, 15 Jan 2022 @ 10:47am

      Re:

      It's too bad we don't have stats on all the stops using the same excuse where there were no charges, and therefore no court case to fight, and therefore no public record.

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

      • identicon
        Paul B, 16 Jan 2022 @ 1:28pm

        Re: Re:

        There is a known tainted record here, cops have been found planting evidence, often so they don't have to look bad for making an arrest.

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

  • identicon
    Anonymous Coward, 15 Jan 2022 @ 6:14am

    So pigs are now dogs too?

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

  • icon
    JoeDetroit (profile), 15 Jan 2022 @ 7:19am

    What do these three judges have in common?

    They were nominated by Republican Presidents. Two George W, one from the Orange Julius hisself. Over & over we see wacked out crazy ass rulings like this & almost every time they have this in common.

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

  • icon
    SteveG (profile), 16 Jan 2022 @ 8:21am

    I have actually seen a cop pinpoint weed in a moving vehicle. I was a witness to a purse snatching in London and while a police officer (a UK one, not a US one, so significant differences here) was taking my statement a car drove past. He turned around and immediately called it into one of the cars that was searching the neighbourhood for the purse snatchers.

    I have no sense of smell, so I had to ask him what had just happened. He looked at me like I was crazy - apparently, the weed was so strong that we should all have been slightly high at that point.

    I do see the differences between the completely unbelievable story above and the thing that I saw happen - I'm just saying that I've seen it happen, albeit with a cop standing on a quiet street corner in the middle of the night.

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

  • icon
    Tachyonic Insomnium (profile), 16 Jan 2022 @ 12:09pm

    Invasion of Privacy

    They have drones that can see into your vehicle, I could be picking my face and they think I’m smoking, so they have to send ground team to look into the vehicle.

    Experiments:

    Test 1 & 2:

    Equipment: Vehicle with darkest 3M ceramic window tint, custom sun shield, Glock 19.

    Method: Windows rolled up, sun shield up, body and gun below window level, point a weapon at ground teams vehicle.

    Results: after 10 seconds ground alerted that lifes in danger and then leaves the area, same test repeated and ground team driver ducks ands moves repeatedly and then leaves shortly thereafter.

    Test 3:

    Equipment: Same
    Method: windows and sunshield up. Pull into a very dark lot with insufficient low level lighting (LLL) and park.

    Result: You should see closest commercial lighting turn on or become brighter to illuminate your vehicle enough for spectrum analysis from sky and monocular viewing of ground team.

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

  • icon
    Bill Poser (profile), 16 Jan 2022 @ 12:23pm

    speed and distance

    It certainly is possible to travel "several blocks" in thirty seconds. Taking an average block to be 300 feet long, let's suppose they travelled three blocks, or 900 feet. That is 1800 feet per minute, or 108000 feet per hour. A mile contains 5280 feet, so that is 20.5 miles per hour, a perfectly plausible speed. I agree that police claims about their ability to smell marijuana are dubious, but this aspect of the police report is perfectly credible.

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

  • identicon
    dadtaxi, 17 Jan 2022 @ 6:11am

    Yet another Junk Science is accepted by the courts

    This is what happens when a court relies on "expert" testimony on just possibilities rather than conducting real objective tests on the actual ability of those officers to detect burning/burnt marijuana in a moving car.

    That their abilities were not actually tested points to yet another junk science that will take years and years of actual science to wend its weary way through the courts to counter judges self-arrogance on their abilities of being science detectors

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

  • identicon
    Karma, 17 Jan 2022 @ 3:44pm

    Ha Ha

    Feel so bad for these poor states. In Ma we are fully legal and driving down the road smelling it is the norm now.

    And what will be worse is hopefully in my lifetime it one will be removed from schedule 1 status, and maybe even federal legalized but the back ass words states that live in the refer madness days mentality will still have it illegal for these exact type of stops. Can't take away that bread and butter baby.

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


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