Va. Officers, Attorneys Debate Sniffing for Pot

April 23, 2012
Chesapeake officers have been pulling over cars on the grounds that they smelled marijuana while driving behind them, an ability questioned by defense attorneys.

April 23--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.

Scott Daugherty, 757-222-5221, [email protected]

Copyright 2012 - The Virginian-Pilot, Norfolk, Va.

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