UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

How many judges have experience smoking marijuana, smelling others who have smoked marijuana, and smelling raw marijuana? At least one judge has such experience. Soon after the Senate bounced Robert Bork, Ronald Reagan nominated a then-forty-one-year-old Douglas Ginsburg to the Supreme Court. His nomination went up in smoke within days after his admission that he had smoked marijuana while a law school professor. He has remained all this time on the D.C. Circuit. Certainly, marijuana smoking should not disqualify one from the bench; nor should marijuana be illegal in the first place.

Whether or not it is a virtue for a judge to have had no direct experience with marijuana outside the courtroom, certainly judges should not be relying on other members of the bench to create judicial notice that marijuana smell provides sufficient probable cause for a search. Worse, judges should not permit unscientific and self-serving trial-level testimony of cops to create such a notion.

For one thing, when smoked, marijuana reeks, but, when unburnt, it can be very difficult to detect, despite the often flippant and probably downright lying claims of police to the contrary, and particularly when the raw marijuana quantities are small and not right under nor right inside the cop's nose. For another thing, there are different varieties of marijuana, and I would like to know if that can affect the stink of burnt and raw marijuana. Most importantly, for judges to take such judicial notice removes defendants and their own lay and expert witnesses from the factfinding equation. Conducting reliable scientific studies of people's ability to smell burnt and unburnt marijuana over the variables of distance, quantity and passage of time is expensive, which probably helps explain why I only know of one study thus far that debunks the notion that unburnt marijuana is easy enough to smell to provide probable cause to search. The study was conducted by Richard Doty, Ph.D., of the University of Pennsylvania, whom I have called before to the witness stand as a raw marijuana smell expert.

In any event, it appears that too many appellate cases finding marijuana odor as sufficient to justify searches fail to distinguish analytically, in their written opinions, or both, as to whether the marijuana is burnt or raw, of a high quantity or not, close or far from the smeller's nose, or interfered by wind, other odors, or even stuffed or dull noses. Consider the following appellate cases in that regard:

- Praised be the Indiana Court of Appeals for recently upholding suppression of a search conducted on the basis of a cop's claim of smelling a small quantity of unburnt marijuana. Indiana v. Holley, No. 02A03-0808-CR-406 (Dec. 23, 2008). In pertinent part, Holley says:

"There was no evidence that Officer Boles [the sole smelling officer] had any formal training regarding the detection of raw marijuana by odor or in distinguishing it from other substances. While there was evidence that he had encountered marijuana during the course of his duties, there was no evidence that he was qualified to know its odor or able to distinguish its odor from that of other substances.

"On the basis of this evidence, we cannot say that the State sustained its burden of proof justifying the warrantless search of Holley.s vehicle. The evidence of Officer Boles's qualifications to identify the presence of raw marijuana by odor alone was not without conflict and is insufficient to overturn the negative judgment of the trial court. While the testimony of a police officer shown to be qualified by training or experience to detect the odor of raw marijuana may be sufficient in a particular case to demonstrate the existence of probable cause as a matter of law, the State failed to make such a showing here." Indiana v. Holley. Thanks to John Wesley Hall for blogging on Holley.

- Last year, Virginia's Court of Appeals permitted a search based on the smell of raw marijuana, saying: "As many courts have held, 'if an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana.'" Bunch v. Virginia, 51 Va. App. 491, 496, 658 S.E.2d 724 (2008) (approvingly quoting U.S. v. Humphries, 372 F.3d 653, 660 (4th Cir. 2004)).

Aside from the deep flaw of such judicial notice as that proclaimed in Bunch v. Virginia, many of the raw marijuana cases referenced by cases cited by the foregoing U.S. v. Humphries -- as discussed below -- deal with large marijuana quantities, sometimes in the hundreds of pounds, and often reference specialized experience by the detecting cops, who often are Border Patrol police. A court must review the totality of the circumstances and assess the credibility and reliability of witnesses before permitting a search based on probable cause, Indiana v. Holley, and such an approach is shortchanged and distorted to permit such searches on the mere claim of a cop that s/he smelled marijuana, particularly in the absence of a basis for the cop's training and experience in distinguishing between the smell of raw marijuana, oregano, or a wide variety of other substances.

For instance, Humphries substantially relies on U.S. v. Scheetz, 293 F.3d 175 (4th Cir. 2002). In turn, Scheetz relies heavily on the Tenth Circuit decision in U.S. v. Morin, 949 F.2d 297 (10th Cir. 1991). Morin says: "This court has long recognized that marijuana has a distinct smell and that the odor of marijuana alone can satisfy the probable cause requirement to search a vehicle or baggage. United States v. Merryman, 630 F.2d 780, 785 (10th Cir. 1980); United States v. Sperow, 551 F.2d 808, 811 (10th Cir. 1977), cert. denied, 431 U.S. 930, 53 L. Ed. 2d 245 , 97 S. Ct. 2634 (1977); United States v. Bowman, 487 F.2d 1229, 1231 (10th Cir. 1973)." Morin, 949 F.2d at 300.

Morin failed to acknowledge that the Merryman case it relies upon involved 242 lbs. of marijuana. Merryman, 630 F.2d at 783. The foregoing Bowman case relied upon by Morin involved twenty-five bricks of marijuana smelled by a Border Patrol Agent who "had smelled marijuana while on duty and ... was familiar with its odor. The court below made the specific finding that Agent Goad did, in fact, detect the odor of marijuana." Bowman, 487 F.2d at 1230. As supported by Bowman, no probable cause to search can exist without the trial judge finding that the smelling officer was sufficiently trained and familiar with the distinction between the odor of raw marijuana and the odor of other substances. Id. Consequently, no judicial notice should be taken that a police officer may search a suspect on the mere claim of smelling marijuana.

Bowman, upon which Morin relies, states: "In our disposition of this issue, we do not write on a clean judicial slate. It is well settled within the Ninth Circuit that smell alone is sufficient to constitute probable cause for a subsequent search for marijuana. United States v. Barron, 9 Cir., 472 F.2d 1215, cert. den., 413 U.S. 920, 93 S. Ct. 3063, 37 L. Ed. 2d 1041 (1973); United States v. Campos, 9 Cir., 471 F.2d 296; Fernandez v. United States, 9 Cir., 321 F.2d 283." Bowman, 487 F.2d at 1230. However, although Bowman relies in part on the Ninth Circuit's Fernandez case to justify its foregoing pronouncement, Fernandez involved "five packages of marihuana wrapped in brown paper." Fernandez, 321 F.2d at 285.

Consequently, enough is enough. Judges need to stop promoting and accepting the deeply flawed notion that a police officer's mere claim of smelling marijuana translates into probable cause to search. A case-by-case inquiry is necessary, to consider the totality of the circumstances that led to the search. Marijuana smell should not create any exception to that rule.