Pubdate: Fri, 13 Sep 2019
Source: New York Times (NY)
Copyright: 2019 The New York Times Company
Author: Joseph Goldstein


Police officers can often justify a search with six words: "I smelled
an odor of marijuana."

Courts in New York have long ruled if a car smells like marijuana
smoke, the police can search it - and, according to some judges, even
the occupants - without a warrant.

But in late July, a judge in the Bronx said in a scathing opinion that
officers claim to smell marijuana so often that it strains credulity,
and she called on judges across the state to stop letting police
officers get away with lying about it.

"The time has come to reject the canard of marijuana emanating from
nearly every vehicle subject to a traffic stop," Judge April Newbauer
wrote in a decision in a case involving a gun the police discovered in
car they had searched after claiming to have smelled marijuana.

She added, "So ubiquitous has police testimony about odors from cars
become that it should be subject to a heightened level of scrutiny if
it is to supply the grounds for a search."

It is exceedingly rare for a New York City judge to accuse police
officers of routinely lying to cover up illegal searches, but Judge
Newbauer's decision does exactly that. Her decision also shows how
marijuana's status as contraband remains deeply embedded in the
criminal justice system, even as the police and prosecutors have begun
to wind down arrests and prosecutions for marijuana.

At the height of the stop-and-frisk era, nearly a decade ago, the
police were arresting some 50,000 New Yorkers a year for low-level
marijuana offenses, more than 85 percent of whom were black or
Hispanic. The arrests have since plummeted, but the presence of a
marijuana odor - real or purported - still serves as a justification
to detain people and search them, sometimes leading to the discovery
of more serious contraband, including guns, police officers and
lawyers say.

One woman who served on a grand jury in Brooklyn late last year
recalled hearing officers in three separate cases claim to have
"detected a strong odor of marijuana" and use it as justification for
a stop or a search.

"They said it very formulaically," the woman, Batya Ungar-Sargon, who
is the opinion editor at The Forward, recalled.

Such testimony can be the final word on whether a search was lawful or
unconstitutional, especially in New York. Some other states have more
stringent rules. North Carolina, for instance, does not allow the
smell of pot to justify a search of the occupants of the vehicle.

In 2016, a federal judge in Rochester concluded that the rule in New
York was unconstitutional and that New York judges had been wrong to
allow such searches. But that decision has had little bearing in New
York City.

Lawmakers in Albany considered intervening this year: A marijuana
legalization bill under debate specifically forbade officers from
relying on the "odor of cannabis" for some searches. The bill did not
pass. Instead, lawmakers opted to reduce the penalties for possessing
or smoking marijuana.

Car stops have become an increasingly important part of the New York
City department's patrol strategy ever since political pressure began
forcing the department to back away from stopping and frisking black
and Hispanic men in large numbers, police officers say.

Looser enforcement and more lenient penalties have made the open use
of marijuana - along with its unmistakable, pungent scent - more
common on city streets and elsewhere.

Still, several officers said in interviews that they had doubts their
colleagues consistently told the truth about what they had smelled.
"Certain cops will say there is odor of marijuana, and when I get to
the scene, I immediately don't smell anything," one Bronx officer,
Pedro Serrano, said in a 2018 article in The New York Times. "I can't
tell you what you smelled, but it's obvious to me there is no smell of

In an interview last month, Officer Serrano said he still believed
that to be the case. Officer Serrano, who currently works a desk job
and is not out on patrol, is one of several current and former
officers suing the Police Department over what they describe as arrest

A Manhattan detective, who spoke on condition of anonymity because he
was not authorized to speak for the department, said it would be very
difficult to prove what an officer did or did not smell.

But the detective said he had come to believe that some officers,
particularly in plainclothes units, lied about having smelled
marijuana because of how frequently he heard it used as justification
for a search.

In recent years, at least five other judges have concluded in
individual cases that officers likely lied about smelling marijuana to
justify searches that turned up an unlicensed firearm, according to
court documents. These judges came to doubt the police testimony for a
range of reasons, such as discrepancies within an officer's account or
among officers, according to a review of the five decisions.

These judges have generally questioned only the credibility of
individual officers in individual cases. Judge Newbauer's claim was
much broader: that there is widespread lying.

A Police Department spokesman, Al Baker, rejected that assertion as
untrue. He noted that marijuana "gives off a distinctive and pervasive

"We recognize that judges arrive at their decisions with their own
sets of values and insights informed by life experiences," Mr. Baker
said in a statement. "Nonetheless, we categorically reject the judge's
baseless assertion in this case and refute her sweeping assertion that
police officers routinely fabricate that the odor of marijuana is
present in every vehicle they stop."

The case that led Judge Newbauer - who was a Legal Aid Society lawyer
before ascending to the bench - to make this claim involved a car stop
in the Bronx on March 24, 2017. A plainclothes officer, Daniel Nunez,
testified that "he noticed a strong odor of burning marijuana" while
approaching the vehicle, according to the decision. Officer Nunez
testified that he observed three small bags of marijuana perched atop
the center console - which the police photographed, according to the

While searching the trunk, Officer Nunez discovered a

Judge Newbauer concluded that Officer Nunez's account was riddled with
falsehoods. She decided the photograph of the bags of marijuana neatly
arranged was likely staged. She noted that one of the two defendants,
Jesse Hill, had testified that the marijuana had been discovered when
officers searched the pockets of the other man who had been in the car
with him.

Gaynor Cunningham, a Legal Aid lawyer who represented Mr. Hill's
co-defendant, said the ruling "recognizes an all-too-common practice
of dishonesty that police officers employ to circumvent the law to
manufacture a 'legal search.'"

Mr. Baker, the Police Department spokesman, said Officer Nunez had
acted lawfully.

Barry Kamins, a former New York City judge and an authority on search
and seizure law in New York, said Judge Newbauer was "the first judge
to really express an opinion about this type of scenario." He said the
opinion brought to mind a court decision from 1970, in which a judge
accused New York City police officers of lying in a similar fashion.

That case dealt with "dropsy" testimony, in which officers testified
they had seen the defendant throw down a small bag of drugs in an
attempt to ditch the evidence as the police approached.

Such testimony spiked after a landmark Supreme Court decision required
courts to suppress evidence gained from an illegal search. Officers no
doubt did catch people trying to discard evidence. But there was
widespread suspicion that officers sometimes made up "dropsy"
testimony rather than admit they had searched someone unlawfully.

Yet even though officers were likely lying at least some of the time,
it was all but impossible to figure out if they were lying "in any
particular case," one judge, Irving Younger, wrote in the 1970 opinion.

"Our refusal to face up to the 'dropsy' problem soils the rectitude of
the administration of justice," he concluded.
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