Pubdate: Mon, 23 Apr 2012
Source: Virginian-Pilot (Norfolk, VA)
Copyright: 2012 The Virginian-Pilot
Author: Scott Daugherty


CHESAPEAKE - When it comes to marijuana, the nose knows.

Even in a moving car. Even with the windows up.

Police officers in Chesapeake have been pulling over cars on the 
grounds that they smelled marijuana while cruising down local 
roadways, defense attorneys say. And according to the testimony of 
one officer, it's become common practice to try to sniff out pot from 
behind the wheel.

"We drive our patrol car with the vents on, pulling air from the 
outside in, directly into our faces," Officer Barrett C. Ring said 
late last year in court during a preliminary hearing, according to a 
transcript of the proceedings. "Commonly, we'll be behind vehicles 
that somebody in the vehicle is smoking marijuana, and we can smell 
it clear as day."

Before officers pull over a car to search it, he said, they will 
follow it until there are no other cars in the area and they are 
certain about the source of the odor.

Assistant Public Defender Matthew Taylor and several other defense 
attorneys question the officers' "supernatural" sense of smell.

"The idea that police can drive behind a car and smell marijuana is 
preposterous," said Taylor, who tried unsuccessfully last week to get 
Ring's search of his client's car thrown out of court. "What do we 
need drug dogs for if (people) can drive behind cars and smell marijuana?"

Kent Willis, executive director of the ACLU in Virginia, agreed with 
Taylor, saying, "It stretches the imagination that the police can 
drive down the road and home in on a car." He predicted that traffic 
stops based only on an officer's sense of smell will draw more legal 
challenges in the future.

"Experts will have to tangle over this and decide," he said.

Officials with the Chesapeake Police Department declined to comment.

So far, the officers' behavior appears to have withstood legal 
review. No defense attorney contacted by The Virginian-Pilot had seen 
any such searches overturned.

Attorney Robert L. Wegman said he has handled two cases involving 
pot-sniffing police on patrol but did not challenge the searches 
because the officers had other reasons to conduct the traffic stops.

On Thursday, Judge V. Thomas Forehand Jr. ruled in Chesapeake Circuit 
Court that the search of Deon Crudup's car was lawful, but he didn't 
specifically address the officers' ability to detect pot while in 
their moving car. Rather, he noted that Ring and his partner, Officer 
James H. Rich, never initiated a traffic stop based on smelling pot.

After smelling the marijuana on April 10, 2011, while driving about 
35 miles per hour on Battlefield Boulevard, they followed Crudup's 
car into the parking lot of Blakely's night club, walked up to the 
parked vehicle and searched it without needing permission, according 
to court testimony. The officers found some dried marijuana in a bag 
along with what authorities said was heroin.

"None of this argument about what the officer could smell in his 
car... has any import," said Forehand, adding that the only thing 
that mattered was that the police smelled marijuana as they 
approached the parked car on foot.

Crudup, 29, was convicted in October on one count of misdemeanor 
possession of marijuana and is scheduled to stand trial May 8 on one 
count of felony possession of heroin.

The air-vent technique hasn't been adopted on any large scale in 
South Hampton Roads outside Chesapeake, according to officials in 
Portsmouth, Suffolk and Virginia Beach.

Suffolk Commonwealth's Attorney C. Phillips Ferguson said he hadn't 
heard of the practice but expects it to catch on as more officers 
learn about it.

"It's very creative policing," he said.

Ferguson saw no problem with police officers using their noses to 
identify suspicious vehicles, follow them and then find another 
reason to pull them over - such as a broken taillight. He said 
officers are allowed to search a vehicle when they smell marijuana 
during a routine traffic stop.

If an officer used the odor of marijuana he sensed while driving down 
a highway as the sole basis to justify a traffic stop, Ferguson could 
see a defense attorney having more success persuading a judge to 
throw out the vehicle search.

"I'm not saying they wouldn't have been justified (to stop the car), 
but it's pushing the line," Ferguson said.

Taylor said he decided to challenge the search of Crudup's car partly 
with the hope that he could prevent the technique from becoming common.

"If cops can get away with this, they will have total authority," he said.
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