The Odor of “Unburnt Marijuana”

January 29, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

What police smell in a car is important.  Certain drugs — Marijuana in particular — have such a distinctive odor that the odor in and of itself can provide an officer probable cause to search a motor vehicle in Texas.

Burnt marijuana has such a distinctive odor which is replicated through training at the police academy.  In class they are able to smell either a small amount of burned marijuana or a tablet designed to replicate the smell (if they didn’t already learn the smell in high school or college).

Some patrol officers will tell you they can smell burned marijuana in a car with rolled up windows, in a park a mile away, or in an airtight cabin on a distant hill with steel walls.  Who am I to say this isn’t true?

It seems like more and more frequently, though, police are claiming the ability now to be able to smell the odor of “unburnt marijuana” as well as “burnt marijuana.”

This claim is disturbing because there is little, if any, scientific proof unburnt marijuana is so distinctive a smell it can be accurately diagnosed with any regularity when not in a mass quantity or by a person in close proximity.  Translation — it’s a green-light for police to profile teenagers, minorities, or people who simply seem to be nonconformists.

Why This is Such a Frustrating Problem

It’s incredibly difficult to cast doubt on an officers claim to be able to smell fresh or unburnt marijuana.  This would most likely be addressed in a motion to suppress to eliminate the evidence arguing the search lacked probable cause.  In that event a police officer will almost certainly tell the judge based on his (years and years and years) of street-smart experience, he’s developed a magic nose for this stuff and he confidently asserts he smelled it your car.  Whether the officer ultimately found a baggie with stems and seeds in the console, or a garbage bag full of fresh marijuana in the trunk, chances are a judge is going to believe them.

In cross examining a self-assured officer who claims this ability, scientific studies showing he only thinks he smells it are probably only admissible where (1) we have an expert of our own on the topic; or (2) the officer recognizes the article as an authority (good luck with that!)

Other options include tough cross examination on the existence of wind, gas fumes, or other odors on the roadway… but again, in the face of a confident officer (who actually found some marijuana in the car in question), showing his testimony is not credible is tough even for the best of cross-examiners.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact an attorney directly.  Communications through this forum are not privileged.

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The Biggest Problem with Portable Breath Testing Devices

January 24, 2013

By Collin County Criminal Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Breath Test Devices in General

In DWI prosecution and defense there are several occasions where a person may give an optional or sometimes mandatory breath specimen.  Obviously at the arrest, a person is given the opportunity to provide a breath specimen.  After the arrest either while on bond or if after conviction — people are often required to submit to testing to start their car or carry a device which tests them periodically.

Only one machine in Texas is currently used and admissible to show a blood alcohol concentration (BAC).  This is the Intoxylizer 5000 which is almost always located at the police station in a special room where DWI arrestees are taken and read statutory warnings.  Any other testing device used in Texas is currently not considered scientifically accurate enough to do anything other than indicate the mere presence of alcohol in one’s system — yet those devices still report a numerical reading.

Other testing devices come in forms such as interlock ignition device (deep lung device or “DLD” for short), portable breath test devices carried by police officers for quick field tests (“PBT”) and portable devices carried around by someone on bond or probation and attached through a smart-phone like connection which requires breath samples throughout the day and reports the results to a probation officer.

Portable Breath Test Devices

Today’s discussion isn’t about the intoxylizer machine but about the other three devices which for today’s purposes I’ll just refer to as PBT technology.  This is because the ladder three devices discussed above operate on what is known as “fuel cell” technology.  Fuel cell technology is highly complex but what is important is (as companies who make and sell services for these devices will readily admit) is these devices are simply not very accurate and extremely susceptible to false-positives.

Common Flaws of PBT Devices

For starters, at least one company claims the accuracy of their device to have a 0.05 margin of error.  In other words, someone who blows a 0.08 might be as high as a 0.13 or as low as a 0.03.  This is the difference between being highly intoxicated and having one glass of wine for some.

The company asks people to wait at least 20 minutes to blow after eating, drinking, or smoking.  The company admits cologne, perfume, hand sanitizer, and toothpaste can result in false positives.  Users are warned not to wear sunglasses or take the test any place where large amounts of alcohol are being consumed.

Courts are admonished by the providing companies the company itself “does not warrant the veracity of readings as evidence.”

The Biggest Problem With Portable Breath Test Devices

The biggest problem isn’t the inaccuracy or fallibility of the testing.  The companies providing these services are honest in telling us what their devices can and can’t do.  The problem is probation officers and courts who treat these device readings as the gospel and mock victims of the short-comings of the technology.

Many probation officers use deliberate and careful discretion in evaluating the results of some of these devices — but unfortunately — some do not.

One thing you learn quickly as a criminal defense attorney is how almost impossible it is to prove a negative.  Failing a PBT test puts you in this position with some evaluators who don’t believe these machines are fallible.  There is virtually no explanation you can give in your defense a probation officer can’t accuse you (or someone testifying on your behalf) of lying about.

What you can do is show how fallible the device might be.  But this assumes the listener has an open mind.  This is the biggest problem with portable breath test devices.

Users are instructed to re-attempt a sample after 10, 20 or 30 minutes to show the first result was a false positive — or if the machine is completely on the fritz — to go to a 3rd party testing agency to prove you haven’t been drinking… Here’s hoping your not in a job interview, the Mojave Desert, or on an airplane!

In Closing

One last admonition from a service provider instructs a person in the event of repeated false positives to have themselves tested by a third party — I’m guessing like an independent test lab.  If that doesn’t get done, good luck telling your probation officer you were in the middle of a job interview, important meeting, or driving through the dessert.  They can see right through those excuses.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any other situation, you should contact an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Why Police Do Illegal Searches

January 16, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Police do illegal searches for one simple reason.  They think they’re dealing with a criminal in a classic struggle of good versus evil.

It is literally life imitating art.  We all grew up watching shows about good versus evil like the “Superfriends” huddling together to defeat “The Legion of Doom,”

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or the Lone Ranger fighting injustice, or even shows like Perry Mason where even a wrongful accusation is so blatant as to be obvious injustice.

An illegal search is simply no different.  The police officer has convinced themselves based  on a mix of objective evidence and highly subjective criteria they have uncovered a criminal in the midst of committing a crime.  Sometimes they’re right and sometimes they’re not.

Terry vs. Ohio is the classic Supreme Court case which discusses the differences between officers using “hunches” or supposition instead of using concrete evidence.  It has long been recognized hunches, guesses or other manufactured probable cause go hand in hand with police profiling.

Psychological Studies Recognize People’s Views of Themselves Affects Their Behavior.

People tend to view themselves differently than they view others.  They tend to view themselves as objective, unbiased, and generally more positively.  Additionally, people tend to over-estimate how much we can learn about another during a brief encounter.  Practically, then, it is easy to see where a self-assured officer convinced he or she has uncovered a crime which only they alone can sense pushes, and pushes, and pushes a situation to the point where a search becomes illegal.

How It Works In Reality

A police officer who has pulled over a group of highly anxious teenagers in a beat-up car at 1 a.m. on a Saturday morning is simply more likely to suspect drug or alcohol involvement than if he were to pull over a mom in a minivan at 3:00 p.m. on a Wednesday.

In the former situation, experienced defense lawyers are naturally skeptical of a police report which tends to craftily bend, twist, or slant the officer’s observations which try to convert subjective beliefs into concrete facts justifying a search.

For example, it’s not uncommon to read police reports which claim a suspect “was anxious.”  Anxiety may be present for countless reasons in a suspect yet a police report will often continue, “in my training and experience it is common for drug dealers to be nervous when confronted by police.”  While this is probably true to some extent — its simply pure guesswork.

Other extreme examples I’ve come across include where an officer claimed to have observed the suspect’s heart beating through a t-shirt (which in the officers experience indicated guilt) and when Defendant stepped out of the vehicle — he did so to distance himself from drugs in his car which is a common tactic for drug users (based on the officer’s training and experience).

One last claim I am seeing more and more often is an officer claiming the ability to smell unburnt marijuana — often outside the vehicle or even in containers or baggies.  While police are specifically trained to detect the distinct odor of burnt marijuana — there is virtually no proof the ability to detect unburnt marijuana is anything better than a guess.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should consult an attorney directly

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Posted by Jeremy Rosenthal, Esq.