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Judge Says Police Claiming to Smell Marijuana Are Liars

Did the police justify their search of your vehicle by claiming they detected the odor of marijuana?  If they did and there was in fact no marijuana smoked or recently in your car, your lawyer may be able to question their credibility based on a New York judge’s recent comments reported in The New York Times.

As in Florida, courts in New York have long held an officer may effect a warrantless search of a car and its occupants if they smell marijuana coming from the vehicle.  But in late July of this year, a judge in the Bronx said officers base vehicle searches on the smell of marijuana too often to be believed.  And, the judge has urged her fellow jurists across the state to stop letting police officers get away with lying about smelling marijuana as an excuse to search a vehicle.

“The time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop,” Judge April Newbauer wrote in a decision in a case involving a gun the police discovered in car they had searched after claiming to have smelled marijuana.  She added, “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.”

A judge rarely, if ever, accuses police officers of routinely lying to cover up illegal searches.  But Judge Newbauer’s decision does exactly that. Her concerns further illustrate just how much marijuana’s status as contraband remains deeply entrenched in the criminal justice system, even as police and prosecutors in New York and across the nation have begun to relax arrests and prosecutions for marijuana.

Some ten years ago, New York police were arresting approximately 50,000 people a year for low-level marijuana offenses.  More than 85 percent of those arrested were black or Hispanic.  While those numbers have substantially declined, an odor of marijuana odor — real or imagined — still serves as a justification to detain people and search them, sometimes leading to the discovery of more serious contraband, including guns or other drugs like meth, cocaine or heroin.

One woman who served on a grand jury in Brooklyn late last year recalled hearing officers in three separate cases claim to have “detected a strong odor of marijuana” and use it as justification for a stop or a search.  According to her, the officers “said it very formulaically.”

Such testimony can be determinate of whether a search was lawful or unconstitutional, especially in New York. Some other states have more stringent rules. For example, in North Carolina the odor of marijuana during a traffic stop cannot justify a search of the occupants of the vehicle.

In 2016, a federal judge in Rochester concluded the practice in New York of permitting officer testimony about smelling marijuana form the basis of a vehicle search was unconstitutional and that New York judges had been wrong to allow such searches. But that decision has had little bearing in New York City where the overwhelming majority of vehicle search issues arise is state, and not federal, court.

The New York state legislature even attempted to intervene.  A marijuana legalization bill under debate specifically forbade officers from relying on the “odor of cannabis” for some searches. The bill, however, did not pass with the legislature instead opting to reduce the penalties for possessing or smoking marijuana.

Car stops have become an increasingly important part of the New York City department’s patrol strategy ever since political pressure began forcing the department to back away from stopping and frisking black and Hispanic men in large numbers, police officers say.

Looser enforcement and more lenient penalties have made the open use of marijuana, along with its unmistakable smell, more common on city streets and elsewhere.  Still, several officers expressed doubts their colleagues consistently told the truth about what they had smelled. “Certain cops will say there is odor of marijuana, and when I get to the scene, I immediately don’t smell anything,” one Bronx officer, Pedro Serrano, said in a 2018 article in The New York Times.”  “I can’t tell you what you smelled, but it’s obvious to me there is no smell of marijuana.”

If you’ve been arrested for any crime arising from a warrantless search of your car or home based on the police smelling marijuana, you may have grounds to challenge their credibility.  If the judge doesn’t believe the officers really did smell marijuana, all the evidence the police obtained from you, including guns, drugs or other contraband, may be subject to suppression and excluded from your case.  In that event the State may be forced to drop or dismiss your case, or to substantially reduce your charges.

If your case involves a search based on an officer’s smell of marijuana under suspicious circumstances, it’s very important you contact a Jacksonville criminal defense attorney experienced with how to challenge the officer’s credibility.  Call now for an absolutely free consultation to discuss how I can help you have the best chance of avoiding a criminal conviction and jail and / or prison due to your misdemeanor or felony arrest in Duval, Clay, Nassau, Baker or St. Johns Counties.