S.D.Ill.: Claim of smell of marijuana from edibles in sealed container not credible

Court finds the officers lacked credibility on the claim they could smell marijuana from fruit flavored edibles in sealed packages. United States v. Clark, 2021 U.S. Dist. LEXIS 115872 (S.D. Ill. June 22, 2021):

The Court also finds that the officers’ testimony regarding the strong smell of marijuana emanating from the car lack credibility. In his application for a search warrant, Agent Neff stated that the officers smelled marijuana during the traffic stop and that “marijuana was seized”; the obvious inference being that the marijuana seized produced the smell. What was missing from the affidavit, however, is the significant detail that the marijuana seized was fruit-flavored edible marijuana that was in a sealed container in a backpack on the backseat of the vehicle.

At the hearing, Officer Waddington first testified that he smelled marijuana coming Ms. Hawkins’ purse. But both he and Officer Degener also testified and stated for the first time that they found marijuana in the form of blunts and roaches in the vehicle. They did not contemporaneously share this information with Agent Neff, nor did they seize or document this evidence. They testified that due to poor judgment, inadvertence, and mistake, they allowed Ms. Hawkins to drive the vehicle away with the evidence. And, significantly, while they acknowledged that this information was relevant and important to a finding of probable cause for a search warrant, they did not share it with Agent Neff or anyone before the hearing. They did not file an amended report regarding these findings even though they did amend their report to state where they believed the traffic infraction occurred.