Search and Seizure

Why Bother With Drug-Sniffing Dogs If a Cop's Nose Can Authorize a Search?

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Is a Colorado license plate the new "Legalize It" bumper sticker? According to a federal lawsuit  filed last week, an Idaho state trooper stopped a motorist on Interstate 84 near the Oregon border and searched his Honda Ridgeline truck for marijuana because the vehicle carried tags from Colorado, which had legalized possession and cultivation for recreational use the previous November. The Denver Post reports that police searched the truck for hours but found nothing illegal. Although press coverage of the case so far has focused on the license plate angle, the justification for the search is at least as troubling as the alleged motivation for the stop, since it seems to give cops carte blanche to search a vehicle whenever they claim to smell something funny.

In his complaint, Darien E. Roseen, a 70-year-old retiree who lives in Washington state and has a second home in Colorado, says Idaho Trooper Justin Klitch was parked in the median of I-84, watching eastbound traffic, on the morning of January 25, 2013. "Immediately after Mr. Roseen passed his location," the complaint says, "Trooper Klitch pulled out from the Interstate median, rapidly accelerating to catch up with Mr. Roseen's vehicle." Klitch followed Roseen into a rest stop, where he "activated his overhead lights only after Mr. Roseen had come to a complete stop in the rest area parking space."

At first Klitch did not say why he was detaining Roseen. Later he claimed that Roseen had failed to signal as he left the highway (which Roseen denies) and that his tires had bumped the curb in the rest area as he parked (which Roseen admits and attributes to snow accumulation that made the curb difficult to see). Roseen says Klitch accused him of pulling into the rest area to avoid police contact—strange if true, since by Klitch's account there was no justification for police contact until Roseen left the highway.

After claiming that Roseen's eyes looked "glassy," the trooper accused him of carrying contraband and threatened to bring in a drug-detecting dog if Roseen did not consent to a search of his truck. After repeated accusations and requests for permission to search the truck, Roseen said Klitch could look in the trunk, hoping he could get back on the road sooner if he allayed the trooper's suspicions. "When Mr. Roseen opened the trunk compartment, and despite the strong gusts of wind and precipitation that day," the complaint says, "Trooper Klitch claimed he could smell the odor of marijuana." Based on that alleged odor, Klitch proceeded to search the entire truck. He called for assistance from local police, who drove Roseen's truck to the Payette County Sheriff's Sally Port, where the search continued. After thoroughly rifling Roseen's belongings, the cops let him go with a citation for careless/inattentive driving.

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Roseen's lawyer told The Denver Post that Roseen "does not use marijuana and never has." So where did this mysterious, search-justifying odor come from? When a police dog alerts to a vehicle in which no drugs can be found, police claim the canine's superhuman olfactory sense must have detected molecules left behind by contraband that used to be in the vehicle. Are courts prepared to accept similar claims about smells allegedly detected by mere humans? Maybe a pot smoker gave one of the presents Roseen was carrying from his daughter's baby shower, and Klitch smelled the remnants of smoke that had wafted by the gift as it was wrapped. Or maybe a pot-smoking mechanic worked on the truck.

Courts are not as skeptical of such claims as fans of the Fourth Amendment might like. The day after Roseen filed his lawsuit, a Virginia judge deemed it "quite believable" that a Norfolk police officer could smell marijuana emanating from a car he was following on city streets, even though the car's windows were closed and even though the car did not in fact contain marijuana. Officer Robert Frenier testified that he pulled the car over solely because of the alleged cannabis odor. A search of the car found a handgun illegally possessed by a passenger with a felony record—but no marijuana. According to The Virginian-Pilot, Frenier said "the driver told police occupants had previously smoked pot in the car."

The newspaper first reported on this practice of sniffing out contraband while driving down the street a couple of years ago. It says police have had mixed success in defending searches based on such remote sensing.

If such unfalsifiable assertions qualify as probable cause for a search, cops do not need to bother with drug-sniffing dogs. They can search any vehicle at will simply by saying they themselves detected a whiff of cannabis.