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New York City Cops Can Always Tell by Just the Smell

by Ed Lyon

As far as marijuana is concerned, the New York City Police Department (“NYPD”) has little need for a canine corps. The city’s two-legged, blue-clad human-type cops seem to have the best olfactory sense in the world for detecting “the odor of marijuana.” At least, that is what they testify to in court again and again.

As penalties for possessing or lighting up small amounts of pot decrease, it’s time for New York’s finest to reconsider, “I smelled an odor of marijuana” as a pretext to justify warrantless searches of people and vehicles. Sure enough, in some cases prohibited weapons and other contraband are found as a result of the unconstitutional searches. However, the veracity of the stated “underlying” reason for these searches is rapidly wearing thin.

Batya Ungar-Sargon served as a grand juror in the city’s grand jury in the Brooklyn borough in 2018. She remembers hearing city cops citing the marijuana odor mantra as their justification for stopping or searching a person. Ungar-Sargon stated the testifying cops “said it very formulaically,” as if by rote memory.

Bronx Judge April Newbauer finally had more than her fill of this practice. In late July 2019, she issued an opinion condemning it. In the case at bar, plainclothes NYPD cop David Nunez testified before Newbauer that he “noticed a strong odor of marijuana” as he neared a stopped vehicle. The marijuana the cops “found” was impressively arranged neatly in a row on the car’s center console as photographed for evidence. The car driver testified that the cops took those bags of marijuana from the passenger’s pockets.

After identifying several false statements in Nunez’s testimony, Newbauer concluded the photo was staged and that Nunez’s testimony was not believable.

In her written opinion regarding this case, she admonished: “The time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop. So ubiquitous has police testimony about odors from cars become that it should be subject to a heightened level of scrutiny if it is to supply the grounds for a search.” 

Newbauer is not the first judge to address this practice. A Rochester, New York-based federal judge ruled that the practice violates the Constitution, but the NYPD and most of its city judges pay the ruling little, if any, heed. Five other judges have gone public with their reservations about this dubious testimony by NYPD cops. Their doubts are often fueled by conflicting testimony by other cops and witnesses and especially by the testifying cops when their own testimony conflicts.

Even the Blue Line has fractured because of overuse of the phrase. NYPD Bronx borough officer Pedro Serrano publicly stated: “Certain cops will say there is an odor of marijuana, and when I get to the scene, I immediately don’t smell anything. I can’t tell what you smelled, but it’s obvious to me there is no smell of marijuana.”

NYPD spokesperson Al Baker officially responded to Judge Newbauer’s opinion and stated: “We categorically reject the judge’s baseless assertion in this case and refute her sweeping assertion that police officers routinely fabricate that the odor or marijuana is present in every vehicle they stop.” 



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