Unless you just smoked a blunt or have flower loosely packaged, cops could be lying about whether they actually smell anything.

By Marcus Ortega

Many of us know the routine. Cop pulls you over and claims to smell weed in order for probable cause to search you and your automobile. It is a simple excuse for habitual searches which sometimes yield arrests, fines, and sometimes confiscations by police. Yet the science of ‘smell’ is getting moved along to help us all avoid flimsy pretexts for unwarranted search and seizure.

A recently published study in the March 2020 issue of Science & Justice, researchers ascertained that people can’t always smell marijuana packed in double vacuum-sealed bags. The scientists examined the faculty of smell of the human nose to notice cannabis when packaged in various ways. Naturally, the stank was obvious when weed was packed in Ziploc bags but the process of vacuum sealing in heavy plastic seemed to preclude people from identifying any cannabis smell. 

Court systems seem to be getting hip to the fact that police use the smell of marijuana as a pretext to search. 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.

Bronx Judge April Newbauer recently wrote a scathing opinion on the dubious nature of police using smell for unwarranted search. “The time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop,” Judge Newbauer wrote about a case involving firearms found in a car they searched after alleging to have smelled cannabis.

“So ubiquitous has police testimony about odors from cars become that it should be subject to a heightened level of scrutiny if it is to supply the grounds for a search.” 

“In plain smell” is a commonly used police doctrine that allows cops to search people and property if they claim to smell marijuana. The legalization of marijuana in several U.S. states has made this doctrine even more problematic. 

States have long held smell as a cover for over-zealous search and seizure. This has given cops a ‘rinse and repeat’ ritual for stopping and searching anyone without any substantive reason. The smell doctrine is naturally riddled with problems. According to the Center for Sensory Studies, “In particular, courts have expressed concerns that the sense of smell is unreliable, subjective, and open to abuse. These concerns derive from the socially-constructed hierarchy of the senses and the resulting associations of sight and hearing with the objective and the rational and of the lower senses, such as smell, with the subjective and irrational.”

What’s worse is many officers are simply lying or delusional. “There’s a lot of anecdotal evidence that at least some officers say they smell it when they don’t,” claimed Alex Kreit of the Ohio State University Drug Enforcement and Policy Center, one of the nation’s foremost experts on Cannabis laws.

Oftentimes, a smell-doctrine based search turns up cocaine, ecstasy, or methamphetamine but not weed. Officers may suspect the possession of drugs and feign detection of marijuana as pretext for a search.

“That type of fact pattern suggests that they just wanted to search the car,” said Kreit.

As with many nebulous and abused laws, marginalized communities get the worst of it. African-American drivers are disproportionately stopped and searched far more than members of other racial groups. “It’s just an invitation for unconscious bias to come in,” said Kreit. “Worse, potentially conscious bias.” 

Ultimately, the Science & Justice study concluded that the way you package your weed when carrying it was deterministic in whether cops could smell it or not. “The results showed that open and casually packaged cannabis was identified with high accuracy, while material packaged in doubly vacuum-sealed plastic was correctly identified at rates no different from chance. The results may help address issues involving the detectability of cannabis aroma in law enforcement and other scenarios.”

So until we get federal legalization, vacuum seal that ganja when traveling.

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