S.D.Ind.: Officer’s testimony he could smell about 3 oz of packaged MJ from a moving car is incredible

Officer’s testimony a small quantity of marijuana in two sandwich bags could be smelled as a car drove by is found incredible and contrary to common sense. United States v. Gray, 2021 U.S. Dist. LEXIS 128199 (S.D. Ind. July 9, 2021):

The fact determination at issue in this case is one that necessarily must be determined by the Court based on its real world experience and common sense applied to the evidence. Officer Hiser cannot say whether the windows of his or Gray’s vehicles were rolled down and Gray points out persuasively. The Court agrees with Gray that it is incredible that Officer Hiser—who self-admittedly does not have a heightened olfactory system—could smell the scent of two resealable sandwich sized plastic baggies of unburnt marijuana coming from a moving vehicle when patrolling in his cruiser. This occurrence is not only contrary to any common experiences, but is “implausible” and seemingly “contrary to the laws of nature.” … While the Seventh Circuit has held that “the scent of burning marijuana alone, if detected,” can justify a Terry stop, …, decades of appellate cases discussing an officer smelling raw marijuana entailed physical characteristics—like proximity to, and amount of, marijuana. …

The dearth of appellate caselaw considering—let alone upholding—Terry stops solely based on an officer smelling three ounces of raw marijuana emanating from two small ziplocked sandwich baggies located under the front seat of a moving car, while he drives his own vehicle, supports a finding of incredibility of Officer Hiser’s testimony as a matter of law. Cf. People v. Heath, 214 A.D.2d 519, 520-21, 625 N.Y.S.2d 540, 541 (1995) (“The arresting officer’s testimony that he observed defendant exchanging a 2-inch glass vial with a dark top, from a distance of approximately 74 feet, from a moving patrol car, after dark, is, in our view, contrary to common experience and, as such, was incredible as a matter of law and did not support the verdict.”). For this reason, the Court grants Gray’s Motion.

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