A police officer only needs to believe he or she has smelled marijuana, in order to restrain a person through stop or arrest. An officer can perform an invasive search of the arrested individual, even if the basis for arrest is a probable cause like marijuana odor. If an officer detects marijuana odor from a vehicle, the officer does not even need to arrest in order to conduct a stop and search. If an officer suspects that marijuana odor is present in a room, the suspicion could supply probable cause for a more extensive search than would otherwise be acceptable.
To examine how reliable the often-used officer smell test actually is, researchers replicated real-life circumstances experienced by police and analyzed the accuracy for humans to discern marijuana odor in these situations. The researchers based the replicated circumstances on common court cases where officers justified their searches by claiming to have smelled marijuana. The results of the empirical studies cast severe doubt on the reliability of officer marijuana smell-tests. In the first study, the researchers recreated a situation in where, during a normal traffic stop, an officer would say he detects the odor of packaged marijuana, through the driver’s window, located in the trunk of a car. The study discovered that individuals in this officer’s position would not be able to accurately detect marijuana odor, due, at least partly, to the entrenching presence of diesel fumes.
In the second study, researchers analyzed a situation where officers would claim they discerned marijuana odor through chimney fumes of diesel exhaust originating from a marijuana grow room. The study found that individuals in these officers’ position would be incapable of detecting marijuana odor when such odor is mixed with diesel exhaust fumes in a ratio modeled from a actual growing situation in an marijuana grow room. This failure to reliably detect marijuana was nearly absolute, even in regards to individuals who are familiar with marijuana odor.
Prior to these studies revealing the stark unreliability of an officer smell test, the courts have used cases involving marijuana odor as vehicles to shrink one’s fourth amendment protections. Marijuana illegality in general has been harmful to one’s right to freedom and privacy. For example the Supreme Court has used marijuana cases to increase greatly the ability of officers to make custodial arrests solely for minor infractions. Also using marijuana cases, the Supreme Court allowed for more extensive frisking of automobiles and established more exceptions to the warrant requirement.
However, now that studies published in the Journal of Law and Human Behavior have exposed in inaccuracy of officer odor detection, perhaps the courts will disallow searches based on smells. For a criminal defendant to argue the search involved in his or her case is based on an unreliable foundation, such as a faulty smell test, he or she should consult an accomplished criminal defense attorney.
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Gilbert Garcia has been Passionately Pursuing Justice for over 30 years and founded The Gilbert G. Garcia Law Firm in 2008. The Gilbert G. Garcia Law Firm is a boutique law firm, specializing in Criminal Defense. Gilbert represents adults and juveniles accused of a crime and who have with a felony, misdemeanor or record cleaning case. Conveniently located on the courthouse square to serve Montgomery and Walker Counties. Gilbert became Board Certified in Criminal Law by the Texas Board of Legal Specialization in 1989. The Gilbert G. Garcia Law Firm is located at 220 N. Thompson St., Suite 202, Conroe, TX 77301. www.ggglawfirm.com.
Drug Related Charges may include: Possession of Marijuana, Possession of Controlled Substance, Possession of Dangerous Drug, Manufacturing a Dangerous Drug/Controlled Substance, Delivery or Intent to Deliver Marijuana/Dangerous Drug/Controlled Substance, Possession of Drug Paraphernalia and many other drug related charges.