Academic journal article William and Mary Law Review

Wake Up and Smell the Contraband: Why Courts That Do Not Find Probable Cause Based on Odor Alone Are Wrong

Academic journal article William and Mary Law Review

Wake Up and Smell the Contraband: Why Courts That Do Not Find Probable Cause Based on Odor Alone Are Wrong

Article excerpt

It was around midnight on March 9, 1994, when Officer Walendzik of the Wyoming, Michigan police department drove through the parking lot of a known high-crime area as part of his routine patrol.(2) Officer Walendzik observed a car with five male occupants in the parking lot.(3) After noticing that the car was not running and that the occupants were not attempting to exit the car, Officer Walendzik approached and spoke to the individual in the driver's seat.(4)

When the driver rolled down his window, Officer Walendzik immediately detected the odor of burned marijuana.(5) Although Officer Walendzik was familiar with the smell based on his prior experience arresting marijuana offenders,(6) he called a fellow officer to the scene to confirm his detection of the odor before searching the car.(7) The second officer confirmed the odor of marijuana immediately upon approaching the passenger's side of the vehicle.(8) He recognized the odor from his previous contact with marijuana during two years of police experience.(9)

After the second officer detected the odor, the officers ordered the occupants out of the car and conducted a pat-down search, which uncovered a handgun in the possession of a passenger.(10) A subsequent search of the vehicle uncovered three additional handguns, three facemasks, pagers, and pieces of a cigar that appeared to contain marijuana.(11)

At the preliminary hearing, the defense attorney moved to suppress all of the evidence obtained from the vehicle, arguing that the search was illegal because it was not supported by probable cause.(12) Despite the immediate and unequivocal detection of the odor of marijuana by both police officers, the magistrate agreed with defense counsel and dismissed the case.(13) The prosecutor appealed to the Supreme Court of Michigan,(14) which affirmed in People v. Taylor,(15) holding that the odor of marijuana by itself is insufficient to sustain a finding of probable cause.(16) As a result, five young males found by police to have handguns, facemasks, and illegal contraband in their possession were back on the street, unpunished.

The anomalous holding in Taylor is not an isolated result. Although most jurisdictions would disagree with Taylor,(17) a significant number of jurisdictions have either refused to accept a plain smell corollary to the plain view doctrine,(18) or have given ambiguous or contradictory rulings on the issue.(19) In jurisdictions that have failed to adopt plain smell, officers who have sufficient training or experience to immediately identify certain odors are placed in a conundrum. They can either 1) let someone go who they are fairly certain is in possession of contraband, or 2) strive to uncover an additional piece of evidence to create sufficient probable cause to justify a search. Each of these options is unsatisfactory. The former is unsatisfactory because it may allow a large number of criminals to escape arrest, even though they are within the grasp of a police officer whose level of suspicion exceeds that which is constitutionally required to conduct a search.(20) The latter is unsatisfactory because there will be many situations in which the officer is unable to perceive any incriminating factors beyond the odor that he has already detected. Moreover, this latter option encourages officers to fabricate additional evidence in order to consummate the arrest of a subject who they are confident possesses contraband.(21) Judicial recognition of the officer's ability to identify a distinctive odor based on his training or experience eliminates the illogical situation where the officer must choose between two such unsatisfactory options.

This Note provides an overview of the principal arguments advocating and condemning the adoption of a plain smell corollary to the plain view doctrine.(22) This Note concludes that those jurisdictions that have yet to definitively resolve the issue should adopt the plain smell doctrine, and those that have rejected plain smell should reconsider their position. …

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