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Detection Of Odor Of Marijuana Sometimes Not Even Possible

Over the years as a criminal defense attorney, I have often times heard a police officer testify to something like, “in my experience and training, I could smell the odor of marijuana.” Based on that smell as supposed probable cause, the officer searched the defendant. There are numerous problems with this. The Defendant and his lawyer have little ability to refute what the officer supposedly observed as there is no recording which captures smell.

It seems disingenuous and way too convenient for an officer to have this amazing ability. In fact, a study conducted by the University of Pennsylvania School of Medicine found that the officers’ claims are sometimes not even possibly true. In the study, they simulated actual drug cases where law enforcement officers claimed to of had probable cause based on the odor of marijuana. The objective data from the study showed that the officers supposed detection of the odor of marijuana was not reliably discernable, even if the person had an excellent sense of smell.

Remember, the Fourth Amendment is supposed to protect citizens from unreasonable searches and seizures. An officer basing a search off of fake detections is not reasonable. Currently, under Kansas case law, officers can establish probable cause by detecting the odor of marijuana. However, judges will suppress evidence in circumstances where it's abundantly obvious that the officer could not have.