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\u2019s a fascinating look at how the defense succeeded in arguing how the search occurred shows a lack of credibility on smell:<\/p>\n\n\n\n\n\n\n\n
Here, the Government\u2019s theory as to whether the officers smelled marijuana smoke or marijuana plant matter and why the Court should find Officer Ledman\u2019s testimony credible is extremely vague. The Court understands that the Government is not contending that the \u201cstems and seeds\u201d between the driver\u2019s 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 \u201cstems and seeds\u201d were the cause of the smell, as he continued to search the car for marijuana after he noted them. (Gov\u2019t 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, \u201cBut there\u2019s gotta be more weed in here.\u201d (Gov\u2019t 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 \u201cstems and seeds\u201d found on the floor between the driver\u2019s seat and the sill and the Mason jar as evidence that Officers Ledman and Fuller \u201cfound\u201d 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\u2019s, Fuller\u2019s, and Schroeder\u2019s searches. (Dkt. 44 at 46; see generally Gov\u2019t Exs. 11, 12, 13.)<\/p>
The Government also does not appear to be arguing that Rolenc himself had smoked marijuana in the car. Rather, the Government argues that \u201cit is obviously possible to associate with people who smoke marijuana without personally smoking marijuana\u2014and unsurprisingly a drug trafficker would associate with drug abusers of all types.\u201d (Dkt. 55 at 8.) The Government further identifies Mr. Burr\u2019s testimony that Rolenc\u2019s intermittent low-level results for marijuana could indicate exposure to low levels of marijuana and \u201cwould be something you would kind of expect if you were around people smoking\u201d to support this argument. (Id. (quoting Dkt. 45 at 169-70).) The Court understands the Government\u2019s theory to be that an unknown person, in the 30 minutes between when Cain exited Rolenc\u2019s car and when Rolenc was stopped by the police, spent time in Rolenc\u2019s 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\u2019s passenger-side window.<\/p>
The Court considers Officer Ledman\u2019s 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\u2019s car on the driver\u2019s 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\u2019t Ex. 12 at 0:01:05-45; Gov\u2019t 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\u2019t Ex. 12 at 0:01:05-0:02:00.)<\/p>
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\u2019s driver\u2019s license and proof of insurance, and commented on Rolenc\u2019s Green Bay Packers attire. (Gov\u2019t 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, \u201cWhat kind of ah, you got just stems and seeds or what do you got in the car? Any marijuana or anything?\u201d (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, \u201cI smell it, yeah,\u201d to which Officer Fuller responds, \u201cI smell it, too.\u201d (Gov\u2019t Ex. 11 at 0:02:26-29; Gov\u2019t Ex. 12 at 0:02:51-53.) Officer Fuller, who had been standing at Rolenc\u2019s 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.<\/p>
Officer Ledman searched the driver\u2019s side of the car, including around and under the driver\u2019s seat, the storage bin in the driver\u2019s door, the center console, between the driver\u2019s seat and the center console, the visor, the backpack on the front passenger seat, the area between the driver\u2019s seat and the door sill (where the flashlight illuminated the particles claimed to be \u201cstems and seeds\u201d) and the back seat on the driver\u2019s side (including a SpongeBob backpack), before returning to the front and asking \u201cWhere\u2019s that weed\u2014that weed smell coming from?\u201d (Gov\u2019t 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\u2019t found any yet. (Dkt. 44 at 35.) He then flashed his light over the particles, described them as \u201clittle stems and seeds,\u201d 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 \u201chmmm\u201d before looking in the center console again and then turning his attention to the contents of the backpack. (Gov\u2019t Ex. 11 at 0:06:58-0:08:11.)<\/p>Officer Ledman continued to search the vehicle, including under the hood, while Officer Fuller inventoried the contents of the backpack, stopping when Rolenc\u2019s phone began ringing. \u2026<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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\u2019s a fascinating look at how the defense … Continue reading