USMJ R&R finds officer not credible on his claim that he could smell marijuana in the car as justification for its search. United States v. Rolenc, 20-cr-137 (NEB/ECW) (D.Minn. Aug. 12, 2021). It’s a fascinating look at how the defense succeeded in arguing how the search occurred shows a lack of credibility on smell:
Here, the Government’s theory as to whether the officers smelled marijuana smoke or marijuana plant matter and why the Court should find Officer Ledman’s testimony credible is extremely vague. The Court understands that the Government is not contending that the “stems and seeds” between the driver’s seat and the door sill or the suspected marijuana in the Mason jar were the source of the odor. The Court would not find this argument persuasive for several reasons. Officer Ledman clearly did not believe the “stems and seeds” were the cause of the smell, as he continued to search the car for marijuana after he noted them. (Gov’t Ex. 11 at 0:06:58-0:08:11.) As to the Mason jar, Officer Ledman testified that he did not note an odor of marijuana emanating from the trunk when he opened it or from the jar when he took it out of the trunk. (Dkt. 44 at 52.) He only noted the smell of marijuana after opening the jar. (Id. at 27, 51.) In fact, he commented after opening the jar and smelling marijuana, “But there’s gotta be more weed in here.” (Gov’t Ex. 11 at 0:25:23-25.) Further, forensic science expert Mr. Burr testified that odor from a sealed Mason jar filled with marijuana would not emanate into a car. (Dkt. 45 at 158.) Instead, the Government relies on the “stems and seeds” found on the floor between the driver’s seat and the sill and the Mason jar as evidence that Officers Ledman and Fuller “found” marijuana in the car.25 (Dkt. 55 at 8.) No other evidence of marijuana or marijuana paraphernalia was found as a result of Officers Ledman’s, Fuller’s, and Schroeder’s searches. (Dkt. 44 at 46; see generally Gov’t Exs. 11, 12, 13.)
The Government also does not appear to be arguing that Rolenc himself had smoked marijuana in the car. Rather, the Government argues that “it is obviously possible to associate with people who smoke marijuana without personally smoking marijuana—and unsurprisingly a drug trafficker would associate with drug abusers of all types.” (Dkt. 55 at 8.) The Government further identifies Mr. Burr’s testimony that Rolenc’s intermittent low-level results for marijuana could indicate exposure to low levels of marijuana and “would be something you would kind of expect if you were around people smoking” to support this argument. (Id. (quoting Dkt. 45 at 169-70).) The Court understands the Government’s theory to be that an unknown person, in the 30 minutes between when Cain exited Rolenc’s car and when Rolenc was stopped by the police, spent time in Rolenc’s car and either smoked marijuana or otherwise handled marijuana in a way that would result in a lingering odor of marijuana on Rolenc, in his car, or both, and this is the reason Officer Ledman smelled marijuana at Rolenc’s passenger-side window.
The Court considers Officer Ledman’s testimony and the evidence of the body cam videos in this context. As shown on the videos, after Rolenc pulls over, Officer Fuller approaches Rolenc’s car on the driver’s side, where the driver-side window was already open, Officer Fuller directs Rolenc to roll down the passenger-side window (where Officer Ledman is standing), and Rolenc complies. (Gov’t Ex. 12 at 0:01:05-45; Gov’t Ex. 11 at 0:00:45-0:01:21.) Officer Fuller did not mention any smell of marijuana at that time, although he is standing next to the open driver-side window. (Gov’t Ex. 12 at 0:01:05-0:02:00.)
After Rolenc rolls down the passenger-side window, Officer Ledman engages in conversation with Rolenc about where Rolenc had pulled over and whether he had stopped at the stop sign at Queen, asked for Rolenc’s driver’s license and proof of insurance, and commented on Rolenc’s Green Bay Packers attire. (Gov’t Ex. 11 at 0:01:26-2:08.) About 40 seconds after Rolenc rolled down the passenger-side window, and after that conversation, Officer Ledman asks, “What kind of ah, you got just stems and seeds or what do you got in the car? Any marijuana or anything?” (Id. at 0:02:06-14.) Rolenc denies having marijuana, denies smoking marijuana, denies that anyone had been in his car recently, and Officer Ledman then says, looking across the roof of the car to Officer Fuller, “I smell it, yeah,” to which Officer Fuller responds, “I smell it, too.” (Gov’t Ex. 11 at 0:02:26-29; Gov’t Ex. 12 at 0:02:51-53.) Officer Fuller, who had been standing at Rolenc’s open driver-side window and therefore would be expected to first notice a smell of marijuana on Rolenc due to his proximity, did not comment on any smell of marijuana until Officer Ledman raised the issue.
Officer Ledman searched the driver’s side of the car, including around and under the driver’s seat, the storage bin in the driver’s door, the center console, between the driver’s seat and the center console, the visor, the backpack on the front passenger seat, the area between the driver’s seat and the door sill (where the flashlight illuminated the particles claimed to be “stems and seeds”) and the back seat on the driver’s side (including a SpongeBob backpack), before returning to the front and asking “Where’s that weed—that weed smell coming from?” (Gov’t Ex. 11 at 0:04:30-0:06:58.) Officer Ledman testified that he asked that question because he continued to smell marijuana but hadn’t found any yet. (Dkt. 44 at 35.) He then flashed his light over the particles, described them as “little stems and seeds,” yet, clearly unsatisfied, leaned over to inspect the contents of the backpack found by Officer Fuller, and then continued to search,
including pulling on the interior trim, concluding with “hmmm” before looking in the center console again and then turning his attention to the contents of the backpack. (Gov’t Ex. 11 at 0:06:58-0:08:11.)Officer Ledman continued to search the vehicle, including under the hood, while Officer Fuller inventoried the contents of the backpack, stopping when Rolenc’s phone began ringing. …
