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Are You Smelling What I’m Smelling? First District Court of Appeals Addresses Odor of Marijuana in Traffic Stop

The 1st District Court of Appeals recently upheld a trial court’s grant of a motion to suppress.  In State v. Whitfield, police initiated a traffic stop for excessive window tinting. Officers Cuiranek and Wells stood next to the car and spoke with the occupants. Cuiranek, who stood on the driver’s side, testified at the suppression hearing that “He had smelled a weird scent coming from the car, but he was not 100 percent sure if it was marijuana, so he called a K9 team to the scene to confirm the presence of marijuana in the car.” Officer Wells, who stood on the passenger side, where the defendant was seated, testified that he smelled marijuana coming from the car.  

When the K9 officer arrived, he approached the car on the driver’s side, and ordered the occupants out of the car. That officer testified that he smelled no odor of marijuana. Officer Wells then performed a frisk search of the defendant, during which he smelled “a little something.” Wells felt a hard lump in the defendant’s pants pocket, which he believed to be marijuana. The officers then put the defendant in handcuffs, and removed the object from his pocket, which turned out to be a baggie with cocaine and a scale. The officers asked him if there was any marijuana in the car. He admitted that there was a bag of marijuana under the seat, and the officers retrieved the marijuana.

The trial court granted the defendant’s motion to suppress, finding that there was no indication that he was engaged in any illegal activity, that there “was no identifiable odor of marijuana coming from the car,” and that therefore the police lacked reasonable suspicion to conduct the frisk search. The state appealed.

Ohio courts have consistently held that an odor of marijuana, detected by a police officer who recognizes the smell from his experience and training, is probable cause to conduct a search. Courts are generally willing to accept an officer’s testimony on this matter as true, and, because of the ephemeral nature of smell, there is often little a defendant can do to challenge this testimony. In this case, however, because three officers gave three differing accounts off what smell, if any, was detectable from the car, the Court of Appeals upheld the trial court’s decision to grant the motion to suppress.

Importantly, this decision was couched in deference to the trial court’s findings. The Court of Appeals noted that “We must accept the trial court’s findings of fact if they are supported by competent and credible evidence,” and held that the evidence did support the trial court’s determination that there was no identifiable odor of marijuana. Under this holding, a trial court facing similar facts could reach a different result and survive appellate scrutiny. A court could choose to credit an officer’s testimony that he smelled marijuana, even where a second officer testified to the contrary. A reviewing court could then determine that competent credible evidence supported the finding that there was an odor of marijuana. Still, Whitfield represents a valuable effort to draw the line somewhere on when to credit an officer’s testimony about odor of marijuana.  

Read the opinion here.