Oct 26, 2012 Challenging searches based on marijuana odor, and a destroyed Mason jar
Again and again, police and prosecutors try to justify car searches solely on the basis of a claim of smelling unburnt marijuana. Criminal defense lawyers must push back diligently, effectively, and persuasively (with the financial resources available to the defendant, which are not always in abundance) against such claims, including doing a marijuana smell test on the officer if permitted by the governing rules and/or trial judge; challenging the officer’s training in detecting unburnt marijuana, and the officer’s track record in successfully determining, by smell, the presence of unburnt marijuana; challenging claims of smelling unburnt marijuana when only a small amount of marijuana is found or unbudding plants are found; challenging whether a police officer mistakenly convinces himself s/he smells marijuana based on a tip that the suspect deals in marijuana; and challenging failure of police to preserve the marijuana and its packaging, and failure to photograph the state of the marijuana before being removed from the packaging.
Congratulations to Jonathan Stoffels, whose lawyers successfully convinced a Chicago federal trial judge to suppress a mason jar containing ten grams of marijuana in his car (seized via a search claiming the smell of an overwhelming odor of unburnt marijuana, but how would the odor emanate from a sealed jar/), and all other evidence found in the car, due to police destruction of the jar. Further congratulations to Stoffels for assembling the finances to pay marijuana smell expert Richard Doty to discount the chance that Stoffels had marijuana odor on his clothes from growing marijuana at home, since the plants were too immature to have much of an odor yet.
It appears that Stoffels is now left with defending against marijuana plants found in his home, but the suppression of the evidence found in his car thereby removes from his upcoming trial any evidence of the discovery of the ten grams of marijuana, substantial amounts of cash, drug recipes, and a sales ledger found in his car.