Florida Drug Search Claims Flunk the Smell Test

The Tampa Bay Times reports that the Pinellas County Sheriff's Office has been using a surveillance camera mounted on a pole outside Simply Hydroponics, a store in Largo, Florida, to identify possible marijuana growers. The operation has generated at least 39 search warrants in the last couple of years. But buying hydroponic equipment is not enough to establish probable cause for a search, since the equipment has many legal uses. To get inside the homes of the store's customers, deputies sometimes resort to highly implausible claims about clues they supposedly detected while standing outside.

On May 25, 2010, for instance, detectives showed up at the St. Petersburg home of John Ray, whose vehicle had been seen at Simply Hydroponics a year before. Lacking evidence for a warrant, they asked him if they could search his house. He said no. They forced their way in anyway and found a single plant in the garage. (Ray, who denied shopping at Simply Hydroponics, told the Times a relative who had stayed with him may have left the plant there.) The detectives later claimed that, standing at Ray's front door after he refused to let them in, they smelled marijuana and heard "the distinct sound of foliage being broken." 

Another example:

In the case of Allen Underwood, [a] Seminole man deputies spotted at Simply Hydroponics in 2010, detectives said they twice smelled marijuana from a sidewalk that was 15 to 20 feet from his home. Underwood's attorney, Jerry Theophilopoulos, says the sidewalk was nearly 70 feet from the alleged grow room.

The Times throws some cold water on such claims:

Some experts say it is improbable, if not impossible, for officers to smell marijuana growing inside a closed structure.

Dr. Richard Doty, the director of the Smell and Taste Center at the University of Pennsylvania, has conducted experiments to test whether people are able to smell marijuana from outside a home where plants are being grown. Insulation and ventilation of the home, the maturity of the plants and the distance between the nose and odor source can affect that ability.

Young plants don't emit an odor, but if a person were growing "hundreds" of mature plants in a structure that wasn't properly sealed, it's "possible" an officer very close to the home would notice the smell, Doty said.

James Woodford of Chattanooga, Tenn., an expert on the topic of marijuana odor, said a large operation vented directly outdoors could generate an occasional "whiff" of marijuana detectable up to 25 to 30 feet away [i.e., less than half the distance between the sidewalk and Underwood's "alleged grow room"]....

Law enforcement officers commonly use the smell of marijuana to establish probable cause. "Many such claims defy common sense, even though the courts routinely accept them as truth," Doty said.

Last May I discussed a Supreme Court case in which police looking for a crack dealer broke down the door of an apartment based on the smell of marijuana and the always-suspicious "sound of persons moving." The method used by the Pinellas County Sheriff's Office to find pot growers was pioneered by the Drug Enforcement Administration in the late 1980s, when the agency's Operation Green Merchant started tracking buyers of hydroponic equipment. 

[Thanks to CK for the tip.]

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  • ||

    So, um, spell check?

  • WTF||

    Seriously:

    Simply Hyproponics,
    Simply Hydronoics

  • Ska||

    Dude, I kept hitting 7...it's right under F7.

  • Fist of Etiquette||

    Sullum doesn't want to actually use the word and have the Reason offices targeted by drug enforcement agents.

  • Jamessir Bensonmum||

    "the distinct sound of foliage being broken"

    Not to be confused with the distinct sound of bullshit.

  • RoboCain||

    Yeah, just reading that killed more brain cells than marijuana ever could.

  • Evan from Evansville||

    Yes. This is the most laughably bullshit thing I have ever heard.

    The DISTINCT sound of foliage being broken. Wow.

    What isn't laughable is how seriously it is regarded by our retarded, infantile populace.

  • James Fennimore Cooper||

    If you heathens had read my Leatherstocking Tales you'd know how distinct the sound of breaking foliage really is!

  • Mark Twain||

    Stuff it, Coop, you hack.

  • Colonel_Angus||

    The sound of breaking nugs is like a very quiet version of the sound of vegetables being prepared. Like lettuce or celery or something.

  • Ice Nine||

    James Woodford of Chattanooga, Tenn., an expert on the topic of marijuana odor,

    Are there a lot of these? I'd like to see his credentials, please.

  • Ska||

    Too late - rolled and smoked when he ran out of aluminum foil, cans, an apple, soda bottle, pen shaft....

  • ||

    He needs to start smoking it out of a Pez dispenser. It worked fine for this dumbass kid.

  • Colonel_Angus||

    Don't smoke with foil.

  • Abdul||

    This is one of the things they never told me in law school, but I later learned in legal practice. There are expert witnesses for everything.

  • A. Scalia||

    Yep, that's all it takes to search a home. Claim you smell pot= plain view. Knock a couple times, claim you heard shuffling around=exigent circumstances. Kick in the door, find pot; evidence admissible. This is exactly what SCOTUS Held earlier this year in Kentucky v. King. Oh, and this was a wrong address case too.

  • ||

    What a mess this whole WoD has made of civil liberties.

  • A. Scalia||

    oh, the article mentions this case. Sorry for being redundant.

  • WTF||

    You forgot to work in the New Professionalism.

  • A. Scalia||

    Yeah the exclusionary rule is obsolete. Police are way more well-behaved now than they were when those liberal activists in Mapp decided to add words their own words to the 4th Amendment.

  • anon||

    When I first started growing in quantity, my room wasn't sealed very well. The smell was strong inside the house, and fairly distinct if you were at my door. Still amazed I didn't get caught.

    I am skeptical that you could smell it from the sidewalk, even if it was an outdoor grow in the front garden. The plants smell, but they don't reek.

  • jasno||

    It depends on your strain. Some reek badly.

    I've had friends whose house stunk - when the front door opened a wall of stank hit you in the face. Even at that house, you couldn't smell it outside from more than 10' away.

    While it's true that smoked and fresh growing marijuana smell different, the distinct components of the smell that are recognizable from far away don't allow you to reliably determine the difference. In other words, from any distance away, the smell of someone sparking a green hit of nice weed smells *exactly* like a grow op. I live in CA, and several of my immediate neighbors smoke, producing regular bursts of fresh, green, skunky goodness.

    Smell is easy to deal with, however, and any experienced grower - the ones producing real quantities - makes sure it isn't a problem(using A/C and a totally sealed room). So once again you have the cops wasting resources busting the small players when the guys who really feed the market go untouched. Then again, I think they like it that way - a small time grower isn't going to put up much of a fight or have the money for a real legal defense.

  • Colonel_Angus||

    I would almost say harvested and cured product concentrates the aroma more than live plants growing.

    I have kicked it at a house where they had an extensive grow in a large closet, but I had no idea about it until they actually showed me after several months. It was quite surprising to find out and more surprising he never run his mouth about it. There was never a smell outside the closet.

    I have lived in proximity to people who cut and sell weed, but don't grow, and that smell would linger and stick to shit outside of the flat without it ever being smoked. Be careful with "loud weed".

  • ||

    Pigs have a much stronger sense of smell than humans.

  • Brett L||

    I see Largo has really come up since I lived there 20-odd years ago as a kid.

  • ||

    How long before people start defending themselves? I do not always advocate violence, but I will never advocate cowardice. I don't want anyone hurting anyone else but this is ridiculous, the police have limits.

  • anon||

    I agree that more cops need to die to stop this nonsense, but you would need to have pretty big balls to pull a gun on SWAT team.

  • Juice||

    Set up a gatling gun right at the front door.

  • Barely Suppressed Rage||

    Trap door right outside the front door, with a remote release you keep in your pocket.

  • Colonel_Angus||

    People have a right to defend themselves, people close to them, and their property. If cops bust in a place and have firearms pointed at them, that's what happens when you invade like a thug. Automatically shooting someone who never fired shouldn't be justified.

  • ||

    Apropos of nothing, The St. Petersburg Times is changing its name to The Tampa Bay Times.

  • ||

    Maybe they can fool some people into reading it...once.

  • Brett L||

    I live in Tallahassee. The SPT is a well-edited and centrist-conservative newspaper compared to our rag.

  • ||

    It's generally well-edited and written, but it's crazy left on most issues.

  • ||

    Well-written? Not bad. Not good. Above average. Layout is good. The quality of the newspaper has REALLY REALLY deciled in the last five years or so. And it definitely is crazy left, but I don't know wnaything about the Tallahasee Democrat to compare.

  • Mensan||

    I somewhat agree. The Times is written and edited much better than the Democrat, but I still think the leftist bias is far more blatant in the former.

  • ||

    If they're concerned with their circulation, switching to Spanish would work better.

  • ||

    It's all about taking share from the Trib.

  • ||

    Personally, I support The Trib. Especially when done in HD.

  • ||

    The detectives later claimed that, standing at Ray's front door after he refused to let them in, they smelled marijuana and heard "the distinct sound of foliage being broken."

    In the alternate reality America in my head, jurors would laugh out loud and throw their shoes at a cop on the witness stand who made such a claim.

    And they would petition the Liars' Guild to disbar the prosecutor who wasted their time on such bullshit.

  • Pope Jimbo||

    I'm also confused about how your case wouldn't fall apart when the only foliage found was in the garage.

    If you used the old "distinct sounds of foliage being broken" excuse for PC, how can you square that with the fact that they found the one plant in the garage.

    They heard foliage being broken in the garage from the front door? Does it really take Perry Mason to point out the flaw in that theory to a jury?

  • ||

    It doesn't quite work that way. That evidence would go before a judge, not a jury, because it is the judge who decides whether the search was legal. If the judge decides it is illegal then the drugs are inadmissible and the case is dismissed. If the judge decides the serach was legal, the only issue the jury gets to decide is whether the defendant possessed the drugs.

  • ||

    Where, oh where, are the perjury prosecutions.

    I mean, cops telling such blatant and laughable lies are Just a Few Bad Apples (tm) in a justice system full of Straight Arrows (tm), right? Right?

  • Gojira||

    I'm with you, but that's why cops use that bullshit: you can't prove that they're lying.

    Even if you set up a recreation of the scene, with the plants, the cop could claim to simply have a better sense of smell than you. So, no perjury.

  • Pope Jimbo||

    Why didn't the defense lawyer bring in two boxes, put them at opposite ends of the court room and ask the cop to tell the jury which one had the pot in it and which one was empty?

    My father (a probation officer) told me about a guy who beat a BWI (boating while intoxicated) because the officer claimed he could smell alcohol on his breath (from the boat landing) while my buddy was circling 30 feet off shore waiting for another rig to get out of the way.

    The defense lawyer put two cups on the defense table and asked the cop to tell him which one had alcohol in it (neither did). When he couldn't the judge threw out the case, dismissed the jury and read the riot act to the cop. According to my father the judge seriously considered perjury charges.

  • Vinny||

    Something very similar happened when my cousin was on trial. It was this whole thing about the time it takes to make grits, and if this guy had magic grits. Ha! Magic! Wish you guys coulda' seen it!

  • ||

    you can't prove that they're lying.

    I think you can, as noted above.

    Besides, its a credibility issue. You don't have to prove with calibrated instrumentation that the cop can't smell or hear what he claims to. You just have to get the judge or jury to believe that he can't.

    And (this is the hard part), you have to get them to care that the cop is lying.

  • Gojira||

    I think Pope Jimbo's example is brilliant, but the experience I've had in west Texas courts is that in the absence of scientifically calibrated instrumentation, the cop is always assumed to be a paragon of virtue and telling the truth.

    You know about Texas justice, Dean; if you're so innocent, why did the police arrest you?

  • ||

    And (this is the hard part), you have to get them to care that the cop is lying.

    "...and ANY ONE of YOU could end up as a defendant against bullshit charges brought by a lying cop."

    Splash it up a bit with some lawyeresse. *dusts off hands* You're welcome.

  • ||

    I assume lies to justify unlawful entry are quite common. It's an understandable temptation--you know (post entry) that the guy was breaking the law, so why not make sure he gets punished for it? And, of course, you don't want to get into whatever trouble you might for admitting an improper entry.

    That said, it's still pretty awful, particularly given the very low thresholds needed these days for an entry or search.

  • mad libertarian guy||

    And, of course, you don't want to get into whatever trouble you might for admitting an improper entry.

    HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA

    *Catches breath*

    Trouble for lying on a police report? HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA

  • ||

    It's vaguely possible if you actually admitted an improper entry. It's not possible to get in trouble for lying, as far as I can tell.

  • ||

    admitting error = punishment
    lying = reward

    What a system!

  • ||

    You get more of what you reward, and less of what you punish.

  • ||

    Talk about intended consequences. . .or lack thereof.

  • mad libertarian guy||

    In Florida? Absolutely!!

  • ||

    where are the perjury prosecutions.

    I wonder.

  • A. Scalia||

    You know if we did away with the exclusionary rule, something the founders never intended, we wouldn't have a problem with all this testa-lying. The only standard the 4th requires is reasonableness. And if drugs are found, obviously the search wasn't unreasonable. This is a war.

  • ||

    "What happened next was, we heard this maniacal laughter from somewhere inside the home. Crazy laughter, see? The kind of laughing only junked-up hopheads do. We had no choice but to enter the premises and investigate. And- I'm sad to say, our suspicions were confirmed."

  • ||

    "And that's when The Joker popped out of a closet and shot all the residents. We were unable to apprehend The Joker after he tossed a purple-smoke bomb and absconded from the scene in a vehicle which we suspect did not have up-to-date registration."

  • Colonel_Angus||

    John Ray sounds like a Florida name.

  • Gus||

    "Dr. Richard Doty, the director of the Smell and Taste Center at the University of Pennsylvania"

    What a great gig!

  • Len||

    What no comments on the surveillance camera? Ok, got that out of the way.

  • Barely Suppressed Rage||

    "the distinct sound of foliage being broken."

    Did they hear the beating of his hideous heart beneath the floorboards as well?

  • ||

    Oh man, I read this story and was immediately reminded of this:

    You were looking for a bomb in a pack of cigarettes?

  • ||

    Oh man, I read this story and was immediately reminded of this:

    You were looking for a bomb in a pack of cigarettes?

  • ||

    I read this article in the paper. You find someintersetingthings in the newspaper other than the sale ads. reason forgot to note that John Ray, who was the main subject of the article, had ONE marijuana plant. yeah, the smell was overwhelming.

  • ||

    And these cops lying is just another example those relentless isolated incidents. I would like to ask Dumphy, is there any reason to believe that cops don't lie routinely in the course of the duties and on the stand? Don't all of us accept that the police feel no qualms about lying on a regular basis?

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