Can the police really lie about smelling marijuana?
Let’s dig into a personal case I have witnessed where that happened, and law enforcement because of lying about the odor of marijuana, decided to do a vehicle search. During the search, they found a gun that the client wasn’t supposed to possess and he got charged federally and because he had priors, he was looking at, depending on how the law worked out, a mandatory minimum of 10 or 15 years in prison.
My client was driving down a street in Minneapolis and law enforcement had pulled him over a week before and knew that he had a revoked driver’s license. Based on that, law enforcement did a u-turn, they recognized him because he’s got really distinctive features and they started driving behind him. The first question is, did they have reasonable articulable suspicion to do a traffic stop? In other words, law enforcement has to have a right to pull someone over and just because they knew that he was revoked a week ago or two weeks ago, doesn’t mean that he’s still revoked today. After all, people can get their licenses reinstated.
The first thing I did when I got the case is order what’s called, the CAD reports, which is the computer terminal where law enforcement communicates with dispatch. And I checked those records, as well as the interior body cameras that the officers were wearing and the interior squad audio, to make sure that law enforcement was really double-checking to make sure this guy’s license was still revoked.
The reason I did all this is that if they assumed it was and then they pull them over, we might’ve had a chance to get the whole case thrown out from there but law enforcement did its job the right way. I did get the computer terminal records as well as those recordings I was talking about and I was able to verify that they did not do the traffic stop, which means they’d turn on their emergency lights to pull him over until they confirmed that his license was still revoked.
So, we know, in this case, the seizure was okay. But here’s what happened after that, two officers in the squad car, the driving officer, the main officer says to the passenger officer, “This guy got caught with a gun a week ago.”
So, law enforcement walks up to the side of the vehicle now that the guy’s pulled over. And the main officer walks right up to the driver’s window and he says, “You’re this guy, right?” Client says, “Yeah. Why? How do you know me?”, “Well, your license is revoked.”Get them out of the vehicle for just driving after revocation, at this point and this is where it started to raise my suspicions. The officer told his partner, “Hey, this guy just had a gun a week ago, he’s a felon in possession, he’s not supposed to have a gun.” So, I know that the officer really was hoping, “hey, I hope I find another gun in this vehicle because we could really get the guy in even more trouble if we find this” and that’s, kind of, confirmed now, my spidey senses, kind of, went up because at this point, the officer’s asking him to step out.
So, what I noticed is, when the officer did the search, if an officer’s really looking for marijuana, they’re going to do a really detailed search of the vehicle but this officer was searching quickly through just large areas where a gun could be hidden and that also tipped me off in this particular case. The first thing he did is search exactly where the last time the guy got caught with a gun was, which was the center console. There was no gun in there but then he popped the trunk and there was a shotgun in the trunk, in a case.
Next, this client was charged with being a felon in possession of a firearm in violation of federal law and the case went federal and that’s when it got really serious here. So, when I met with the client, he was insistent to me that he had not been smoking marijuana, that he always had clean UAs on his parole, and that this officer was absolutely lying about the odor of marijuana.
It’s important to continue peeling back the layers of an onion in a criminal case, especially if you may have a suppression issue, like an illegal search vehicle. Or if you’re going to go to trial, for example.
The next thing we did is, I told the prosecutor, “I’m believing my client here, that he was really smoking Black & Mild and not a blunt.” Tell you what, that cigar was captain evidence. I said, “I don’t want that officer to bring it over because I’m afraid that the officer might switch it out.” So, we had the ATF go and grab all the evidence in the case, that was preserved.
Next, they brought it over to the United States attorney’s office and I had an ATF agent bring it over and it was me and the federal prosecutor. I told that federal prosecutor, “we’re both going to smell that Black & Mild that was at the scene or the cigar that was at the scene of what the officer said maybe a blunt at the scene.” We pulled it out of the evidence after it was properly cataloged, we both smelled it. Guess what? Tobacco.
But the prosecutor said, “but wait a minute, someone could have smoked marijuana in the vehicle earlier and then you know how the interior of the vehicle could still smell like it or the upholstery in the vehicle or maybe the guy’s clothing.” Yeah, that can happen, of course, but I wasn’t buying it in this particular situation. Then I said, “you know what? I want this officer’s personnel file. I want to see if this officer has ever been in trouble before, disciplined by the police department for anything improper.” Guess what? Continued with our persistent requests to get a copy of this personnel file, this officer had been suspended by the police department before, for an improper vehicle search.
When we brought that to the light of the prosecutor and we asked that this be brought into evidence so that a judge could look at it… Two days before this suppression hearing, where this officer was going to have to testify and be cross-examined by me, his partner was going to have to testify and be cross-examined by me. We were going to put this thing into evidence, the actual Black & Mild, as well as I went out and got a new, unused, Black & Mild to show the judge what these look like before they’re smoked, so he understood exactly what we’re dealing with. The prosecutor dismissed the entire case and I was able to call my client, at the jail where he was being held in detention because in federal court, you don’t get to just put up money bail, a judge determines whether you need to be held the whole case without bail or not.
Based on this guy’s record and the allegations here, they were going to be holding him without bail. I got to tell my client that he was going to be going home, it was the day before Thanksgiving, that he was going to be going home that night and he was going to be able to spend Thanksgiving with his family. Now, some of you might be thinking, “but wait a minute, this guy was a felon, this guy got popped with a gun a week or two before that and now he got another gun case and you’re helping him out” or something like that. Well, I understand that and there’s just a certain percentage of the population that’s always going to feel that way and believe me, I had a talk with that client about turning his life around and how all the facts came together with the right way here, for this case to be thrown out but people don’t get lucky that often. If he continues with his ways, he’s going to be back, and the odds of him getting a federal case thrown out again, pretty slim.
The constitution protects everybody, we don’t get to pick and choose nor should we pick and choose who it applies for. Because when the constitution was written and the bill of rights were incorporated, they are to protect even the evilest or disliked portions of society, as they are for the most loved and innocent people in society. Otherwise, the constitution means nothing. It ought to be equally applied to all citizens and that means including the 4th amendment, which protects all of us US citizens against unreasonable searches and seizures. So, while some people may not like the result of this case being thrown out, if we don’t honor the constitution and if cases aren’t thrown out in favor of people’s constitutional rights, then the constitution means nothing. The only way, there are couple of ways to dissuade illegal police conduct or police lying about evidence in order to search something, one way is to throw the cases out because that’s a big deterrent there.
In case you’re wondering what in the world this is doing in my office, tune in next time for another story about peeling back the layers of the onion and how I got a guy acquitted of two trials in a murder. If you have any more questions about the odor of marijuana in a vehicle or your constitutional rights, I’m criminal defense attorney, Ryan Pacyga, you can call me at (612) 339-5844 or find me at arrestedmn.com.