This article was written by Jamie Satterfield of Tennessee Lookout
Every day in Tennessee and across the country, citizens are being stopped, searched and seized solely on the power of three words: I smell marijuana.
“A whole heck of a lot of cops are going to say today, ‘I smell marijuana,’ ” Knoxville criminal defense attorney Mike Whalen said.
Under the law in Tennessee and a host of other states, a law enforcer’s claim of smelling cannabis trumps constitutional protections against invasion of privacy and unreasonable search or seizure. A cop who claims to smell marijuana can, without any evidence or search warrant, search a citizen’s belongings and vehicle.
“It’s a search for free card,” Knox County Public Defender Eric Lutton said.
It’s a decades-old legal doctrine known as the “plain smell exception” to the Fourth Amendment of the U.S. Constitution. It was established in Tennessee in 1976. Its premise was this: Nothing else in the world smells like cannabis, then illegal in any form.
“Nothing else smells like marijuana and so when an officer smells that smell, they have probable cause to believe that person is committing a crime,” Lutton explained.
Department of Justice policy experts warned in a 1987 report that the ‘I smell marijuana’ exception would “encourage more searches and seizures without warrants.”
Court records in Tennessee and elsewhere show that’s exactly what happened — the “I smell marijuana” claim has been increasingly used by law enforcement to justify searches absent any evidence of wrongdoing in the decades since the plain smell exception was adopted.
“If an officer just says the magic words ‘I smell marijuana,’ that gives them carte blanche approval to search anybody that is traveling down the road (or) in the area,” Lutton said. “It’s very ripe for abuse.”
Now, there’s a new problem with the “I smell marijuana” exception, according to veteran attorney Joey Fuson.
Hemp, a form of cannabis, is now legal to produce, buy and smoke in Tennessee and has been since 2017.
“They all have the same smell as (illegal) marijuana,” Fuson said. “The only difference is the level of THC, and you can’t tell that by smelling it.”
‘I smell marijuana’ abuses
There’s no way to know just how often police use the smell of marijuana as a basis to conduct a search. Officers aren’t required to report every search or interaction with a citizen and instead document only those that lead to an arrest.
“That’s probably not making the newspaper, if the officer doesn’t find anything,” Lutton said. “So, we never hear about it.”
There’s also no way to know how often their noses were wrong. Officers aren’t required to document searches in which they don’t find marijuana or file charges.
“I can recall a case where an officer testified he could smell marijuana emanating from a vehicle two cars up with their windows up and his windows up,” Lutton said.
“We have seen numerous cases where the officer says ‘I smell marijuana’ and searches the car and finds nothing and (the excuse is) always, ‘Well, there must have been marijuana in the car at some point,’” Lutton continued. “There’s never a way to prove an officer just sort of fabricated a potential marijuana smell.”
There’s also no accountability for officers who lie about the smell or their ability to pinpoint the source of the smell, Whalen said, especially when the resulting search ends up netting evidence of other crimes.
“(Prosecutors) will offer a client a probation,” Whalen said. “The client says, ‘Wait a minute. They’ll offer me probation?’ I’ll take it. You cover it up (abuses of the plain smell doctrine) by saying, ‘Yes, we might have done wrong, but we’ll just let you get a conviction with probation.’ That counts as a win for the officer.”
Court records show uses — and abuses — of the “I smell marijuana” exception most often occur in poor and minority neighborhoods, where police presence is higher than in more affluent and urban communities.
“The police increase patrols in what they classify is high-crime areas, but that’s kind of a chicken and the egg thing,” Lutton said. “If you put a really heavy police presence in a six-block area, you’re going to make all these arrests and then it becomes the basis to classify it as a high-crime area. If you’re not as intensely patrolling in Farragut (a wealthy suburb in Knox County), you’re not going to be having these encounters.”
Fuson said abuse of the “I smell marijuana” doctrine is most likely to occur when law enforcers have targeted a suspect in an investigation but have no evidence or legal basis to get a search warrant.
“We see that all the time in areas where (police) think crime has been committed or a situation where they believe the person already has some drugs,” Fuson said. “I have many times believed they’ve made that up.”
An odor that ‘lingers’
But not every officer who claims to smell marijuana but finds none is lying, experts interviewed by the Tennessee Lookout noted.
“You walk into a parking lot and you go, ‘Wow, it smells like weed,’” Knoxville defense attorney Joshua Hedrick said. “And you probably do smell weed, but you can’t pinpoint where it’s coming from. We all know smoke lingers and it moves.”
Fuson added, “It smells so strong, so you have a situation where none is found so it seems like the officer is lying but maybe not. It gets on people’s clothes, and it is so pungent.”
“It lingers — in stairwells, in cars, on clothing, in the air,” Whalen said.
There is no way for officers — and drug detection dogs — to determine the difference between the smell of marijuana and legal cannabis. It is only through laboratory testing that marijuana can be distinguished from legal cannabis, and those tests aren’t conducted until a person has been arrested and the case set for trial, the attorneys noted.
“There is no difference between marijuana and hemp,” Hedrick said. “It’s the same product. It doesn’t look different. It doesn’t smell different.”
“The only difference between coffee that is decaffeinated and caffeinated is the amount of caffeine,” Fuson explained. “You can’t taste caffeine. You can’t smell caffeine. You can’t see caffeine just like you can’t taste, smell or see THC.”
“Not even the canines can detect the difference,” Fuson said. “If you start with the principle the canines cannot detect the difference, there’s no way, obviously, that any human can smell the difference despite officers early on trying to claim they could smell the difference.”
Yet, the plain smell doctrine remains the law of the land in Tennessee and in many other states, including some that have legalized hemp and marijuana, Fuson said.
“You’ve got a big problem because the officers are still being guided by the principle of the smell of cannabis equals the smell of marijuana and the smell of marijuana is probable cause to search and that law has not been changed yet,” Fuson said.
“It’s just that our judges have not ruled to change the laws yet,” he said. “We’re in this weird place where you’ve got someone saying I smell something, and it could be legal or it could be illegal. There are some judges in some jurisdictions locally who do believe probable cause is a big problem and have ruled in favor of the defendant when they’ve raised that issue in some of the lower courts.
“(But) it’s going to take the (Tennessee) Supreme Court or the Court of (Criminal) Appeals to rule on it (for the doctrine to change),” Fuson said. “It hasn’t come up in front of the (appellate) judges yet. So, now you have more likelihood than ever of this confusion by law enforcement.”
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Published on May 17, 2022.