W.D.Pa. shows you can win a MJ smell as PC argument

“Based on the record developed at the suppression hearing, the Court finds that Detective McGee did not have reasonable suspicion to seize Defendant for the following reasons: (1) the Court does not credit Detective McGee’s testimony regarding the odor of marijuana; and (2) Defendant’s behavior did not provide an objective basis for reasonable suspicion.” United States v. Martin, 2022 U.S. Dist. LEXIS 135686 (W.D. Pa. Aug. 1, 2022):

More importantly, however, Detective McGee’s testimony concerning the odor of marijuana emanating from Defendant’s vehicle ultimately does not withstand a common sense test of reason and logic considering the record developed at the suppression hearing. See Murphy, 402 F. Supp. 2d at 569 (specifying “the extent to which [the witness’s testimony] withstands a common sense test of reason and logic” as a factor to consider in assessing credibility). Despite testifying that he smelled an odor of burnt marijuana when Defendant lowered the vehicle’s window, Detective McGee did not see smoke coming out of the window, nor did he observe Defendant discard a marijuana cigarette butt out the window. (Docket No. 73 at 35, 36). Additionally, Detective McGee testified that he observed in the vehicle packaged cigar blunt wrappers, which are used to smoke marijuana, but he could not remember whether or not the package of wrappers was open. (Id. at 23, 36). Most notably, no marijuana was found in the vehicle when it was searched. (Id. at 35). The Government did not clarify at the hearing or in its post-hearing submission this discrepancy between Detective McGee’s testimony that he smelled the odor of marijuana and the lack of any evidence of recently smoked marijuana. Accordingly, given the lack of evidence of recently smoked marijuana, the Court is unable to credit Detective McGee’s testimony that he smelled burnt marijuana coming from Defendant’s vehicle. See United States v. Mercadel, 75 F. App’x 983, at *5 (5th Cir. 2003) (police’s failure to find any evidence of recently smoked marijuana supported district court’s conclusion that officer’s testimony that he smelled marijuana was not credible); Harrison, 2018 WL 4405892, at *5-6 (finding officers did not have reasonable suspicion to seize the defendant, in part, because the court disbelieved the officers’ testimony regarding the smell of marijuana); United States v. Shields, No. 05-20433-B, 2007 WL 4481147, at *5 (W.D. Tenn. Dec. 18, 2007) (finding officer’s testimony concerning marijuana smell not credible where there was no evidence to indicate that the defendants had been smoking marijuana in vehicle).