N.D.Ga.: Court doesn’t buy officer testimony they smelled marijuana; search suppressed

Effective cross examination works: The court concludes on the credibility of the officers that they did not smell marijuana coming from defendant’s car, and the subsequent search is suppressed. United States v. Smith, 2014 U.S. Dist. LEXIS 67306 (N.D. Ga. April 25, 2014):

The issue in this case is whether the government proved that the officers smelled marijuana emanating from Defendant’s automobile either during or immediately after detaining him for a traffic violation, sufficient to prolong the stop in order (1) for a drug detection canine to be dispatched to the scene, and (2) to remove Smith from his vehicle, which actions resulted in discovery of the firearm and, ultimately, the controlled substances which form the bases of the charges in this case. The Court concludes that the government has not satisfied its burden.

As noted, the government bears the burden of showing that it is more likely than not that the officers smelled marijuana. However, each government witness testified inconsistently as to when marijuana was first smelled. First, Sutherland went back and forth about when she first smelled marijuana. Although she mainly stated that it was during the course of speaking with Smith prior to the conclusion of the citation process, she also testified that she did not smell marijuana until she had completed the traffic citation process and had given Smith his copy of the citation. The government did not attempt to explain this direct inconsistency, except by arguing that inconsistencies between the two officers’ testimony could be expected. However, in this case, it is not just Sutherland’s testimony differing with Asberry’s; it is Sutherland’s testimony differing with other portions of Sutherland’s testimony. Obviously, if Sutherland smelled marijuana while the traffic stop was ongoing, then she was justified in continuing the initial detention at least temporarily until her suspicions were either confirmed or dispelled. United States v. Garcia-Aleman, No. 1:10-CR-29, 2010 U.S. Dist. LEXIS 65333, 2010 WL 2635071, at *1 (E.D. Tex. June 9, 2010), adopted by 2010 U.S. Dist. LEXIS 65332, 2010 WL 2635073, at *1 (E.D. Tex. June 30, 2010) (“[I]f additional reasonable suspicion arises in the course of the stop and before the initial purpose of the stop has been fulfilled, the detention may continue until the new reasonable suspicion has been dispelled or confirmed.”) (citations omitted). If, on the other hand, she smelled it after the traffic stop was concluded, i.e., after she handed the signed citation to Smith, then the Court would employ different analysis, that is, whether there was reasonable suspicion justifying the additional detention. The government essentially asks the Court to pick one, because under either scenario the officer could continue to detain Smith, but it does not offer an explanation for the inconsistency in Sutherland’s testimony. Thus, the Court is left wondering whether Sutherland smelled marijuana at all. Since the government has the burden of establishing the facts and establishing that the warrant exception applies, the Court is unwilling to accept such inconsistencies as satisfying the government’s burden.

A number of other facts also support the Court’s rejection of Sutherland’s testimony. First, she testified that Asberry told her, unprompted by any other discussion with him or comment she made, that cigarette smoke is commonly used to mask the odor of marijuana. Simply stated, that testimony did not make sense. While Asberry testified that he told Sutherland about the odor-masking effect of cigarette smoke after he claimed to have smelled marijuana, he did not testify that his comment to Sutherland was unprompted. Sutherland’s testimony on this point leads the Court to skeptically evaluate other portions of Sutherland’s testimony, which was based on her memory of the sequence of important events during the traffic stop. While the Court can, as argued by the government, expect certain inconsistencies to occur between even the most trustworthy and straightforward witnesses, Sutherland’s recollection of the circumstances of when Asberry told her about the use of cigarette smoke to mask marijuana odors simply did not ring true.