By Collin County Criminal Defense Lawyer Jeremy Rosenthal
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.