Appeals Court Says It's Entirely Possible For Cops To Pinpoint Marijuana Odors In Moving Cars

Cops are still claiming they can detect the odor of marijuana in moving vehicles. Not only that, they claim they can pinpoint the source, even when in traffic.

Not every court has been supportive of this speculative fiction. A federal court in Indiana found an officer's testimony literally "incredible" when he claimed he could smell the odor of marijuana emanating from two sealed plastic bags located inside a car traveling in heavy traffic with its windows up. The court said this testimony was not only "implausible" but "contrary to the laws of nature."

The same can't be said for this decision from the Eighth Circuit Appeals Court, which originated in Iowa. The same claims were made here by two officers, who used their apparently superhuman olfactory senses to locate weed in a passing car -- one that similarly travelled through heavy traffic. In this case, both the cop car and the targeted car had some windows down. But even so, it's difficult to believe officers were capable of pinpointing the odor in traffic while dealing with "swirling winds."

The cops lucked out on this stop. They discovered some marijuana ash and an unsmoked blunt during the stop. They also recovered a handgun, which led to the federal charges Vernon Shumaker was hoping to have dismissed due to the apparent unreasonableness of this search.

Here's how the stop was effected, according to the Eighth Circuit's decision [PDF]:

On October 5, 2019, the officers were on patrol in a marked squad car. Officer Steinkamp drove the car, Officer Garrett sat in the front seat, and Officer Minnehan sat in the back seat. The squad car’s front windows were up, but its back windows were down. At 5:49 p.m., the officers were driving westbound on a city street behind a black sedan that had its windows up. According to weather records, the wind was traveling between 13 and 17 miles per hour. The officers did not smell marijuana while driving behind the black sedan.

As the officers approached a four-way intersection, they saw a red Chevrolet Impala traveling eastbound abruptly turn left in front of the oncoming black sedan. The Impala’s “passenger side window was down.” At the intersection, the officers turned right and started driving northbound on the same street as the Impala. Shortly after making the right turn, the officers “started smelling the odor of marijuana, and that’s what drew [their] attention” to the Impala.

The squad car was approximately 100 meters behind the Impala when the officers first smelled the odor. The Impala was in the left lane, while the squad car was directly behind the black sedan in the right lane. The officers did not believe that the black sedan was the odor’s source because its windows were up and they never smelled marijuana while following the black sedan before turning right.

Both officers claimed to have smelled burning/burnt marijuana. They also made other ridiculous claims -- ones ignored by the court.

The officers changed lanes and sped up to position the squad car close behind the Impala in the left lane. A black truck was immediately in front of the Impala. An SUV was farther ahead in the right lane. The road was busy at that time. The officers drove directly behind the Impala “for several blocks”—approximately 30 seconds—to “make sure that [they] kn[e]w for certain without a shadow of a doubt that [it was the] vehicle that has the odor of marijuana emitting from it.”

You can't travel "several blocks" in thirty seconds, not even if you're on a freeway. The cops either followed the car for several blocks or thirty seconds. They could not have done both. And they still insisted this method of wandering around in traffic allowed them to pinpoint the location of the odor.

The officers claimed the driver had been smoking and driving, thus justifying the search. The search uncovered no evidence of this claim.

In addition to the marijuana cigarettes, the officers also recovered a digital scale with trace amounts of marijuana residue on it and a loaded nine-millimeter pistol in the center console. They did not find embers or smoke in the ashtray or a lighter.

Expert witnesses on both sides offered their findings, which were contradictory. The court decided to side with the officers' expert, who claimed it was possible to pinpoint marijuana odors while driving in heavy traffic. But he also said this, which applies directly to this case:

He admitted that marijuana cigarettes are hard to smell if they are in a closed container and that none of the marijuana cigarettes found in Shumaker’s ashtray appeared to be