E.D.N.C.: Court doesn’t credit that officer smelled marijuana

Court doesn’t credit that officer smelled marijuana and suppresses search for lack of probable cause to search the person. Video of stop and car search was instrumental. United States v. Price, 2015 U.S. Dist. LEXIS 52734 (E.D. N.C. April 22, 2015)*:

Although it is a close case, the Court is unable to conclude that the government had probable cause to arrest Mr. Price for possession of controlled substances when Sergeant Fike conducted the second pat-down. The government argues that the odor of marijuana, the alert of the drug dog, the knowledge that Mr. Price had previously hidden marijuana in crotch of his pants, and government’s collective knowledge regarding ongoing drug trafficking activities provided Sergeant Fike with probable cause necessary to arrest Mr. Price for possession of controlled substances, thereby justifying the second pat-down.

The Court does not credit Sergeant Fike’s testimony that he smelled marijuana. Perhaps he thought he smelled marijuana, or perhaps “the wish was father to the thought.” United States v. Gemma, No. 12-10155-GAO, 2014 WL 1654133, *4 (D.Mass. Apr. 25, 2014). It is undisputed that the drug dog did not alert on the bags that allegedly smelled of marijuana. Neither marijuana nor drug paraphernalia was ever found during the search of the car, which, per the video evidence, was extremely thorough. Moreover, it is clear that Sergeant Price was fishing for evidence of drug trafficking throughout the traffic stop. In sum, the Court does not find Sergeant Price’s assertion that he smelled marijuana credible and accordingly, does not consider it in the probable cause analysis.

The question thus becomes whether the dog alert on the car, the knowledge of Mr. Price’s prior criminal record, and the knowledge of the ongoing drug investigation provided Sergeant Fike with probable cause to arrest Mr. Price for possession of controlled substances. The Court finds that it did not. The dog alerted on the car, not on Mr. Price. Accordingly, the dog alert constituted probable cause to search the vehicle, not Mr. Price’s person. Illinois v. Caballes, 543 U.S. 405, 409-10 (2005). Moreover, it is unclear to what drug the dog was alerting, and no drugs were found in the car or bags prior (or subsequent) to the pat-down.