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Human Drug Detectors and Your Rights

Posted by Sean A. Black | Dec 31, 2013 | 0 Comments

One of the recurring stories that I hear goes like this.  Driver was going down the road.  They have a small quantity of marijuana in a closed container inside a suitcase in the trunk of their car.  They get pulled over for some minor traffic violation.  The officer speaks to them once they are pulled over and then claims that he smells the odor of marijuana coming from inside the car.  This, the officer tells the driver, gives the officer the right to search the vehicle.  The officer begins the search of the vehicle.  The officer either finds the marijuana in the suitcase in the trunk, or, as often happens, the driver confesses the presence of the marijuana to the officer when the driver sees that the search is proceeding.

I am asked "is this legal?"  "Can this be right?"

The answer in Georgia is often, unfortunately, yes.  It depends, in part, upon the facts of the individual case and the officer's presentation in court.

The Georgia appeals courts have held that the detection of the odor of marijuana from inside the vehicle by a trained officer gives the officer probable cause to believe that contraband is present in the vehicle.  Probable cause is required to authorize a search.  Vehicle searches do not require the consideration or issuance of a warrant by a judge as one might believe from reading the Fourth Amendment.  The United States Supreme Court long ago created the vehicle exception to the warrant requirement of the Constitution.

Some cases make a distinction that the officer smelled "burnt marijuana" and others "raw marijuana," but both odors have been deemed sufficient to authorize a search.

Typically, the officer must only testify that he had been trained to recognize the smell of marijuana, raw or burnt, and that he was familiar with the smell of marijuana, and that he recognized that odor coming from the interior of the vehicle.

Studies of human odor detection suggest that the reliability of such identification of marijuana is questionable.  It's worth noting that the argument for trained K-9 units has always been that officers are not nearly as good at identifying odors as the dogs are.  Still, the courts have accepted and approved such testimony so long as the officer sticks to the script regarding training and experience and familiarity with the odor of marijuana.

More disturbingly, the courts have begun to expand their reliance on these human odor detectors.  In a Georgia Court of Appeals case from June of 2013, the court approved a search where the officer claimed training, experience and familiarity with the odor of methamphetamine and that he had detected that odor coming from a vehicle.

Other factors such as the lawfulness of the initial stop, length of detention and other behavior and history of the law enforcement officer can still influence the decision of whether a particular search is lawful or not.

If you are facing a drug possession charge or drug-related objects charge, you need to consult with an experienced criminal defense attorney like Sean A. Black of Black Law Offices, LLC.  For a well-qualified Northeast Georgia criminal defense lawyer call him at 866-234-4481 or fill out one of our contact forms.

About the Author

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.

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