Arrest, Search, Seizure, Warrant This search smells (or doesnt)

[davidi]

yesterday i was pulled for having an expired license tag. when the officer got to my driver's side window, he made a sniffing motion and asked "where's the pot?" i stonewalled for a couple of minutes, then he got me out of my car, cuffed me, and asked if he could search the vehicle. i screwed up by consenting, but i was intimidated and it seemed certain he was going to search whether i consented or not. he found less than 1/4 oz. of marijuana and a small pipe under the driver's seat and i was charged with misdemeanor possession. a few minutes later in the squad car, he said that he didn't think i had been smoking recently, since the pipe wasn't warm and my eyes looked fine, and thus wasn't going to charge me with dui. my question is this...by saying that he didn't think i'd been smoking recently, didn't he cast doubt on what he initially "smelled?" it can't be both ways...either i had just been smoking and he smelled it, thus establishing reasonable grounds for a search, or i had not just been smoking and his "sniff" at the beginning was just a ruse to get into my vehicle. by his own statements, the officer indicated he didn't think i'd been smoking recently, so doesn't that invalidate his olfactory pretense for the search?

haven't talked to a lawyer yet (friday i will), but does anybody on this board think i'll get anywhere with this line of defense? my goal, of course, is to get the whole thing dismissed...except for the expired tag fine, which i will gladly pay.

 

[NYClex]

why should the one thing deny the other?

The smell could have been caused by someone else: Example:
John is habitual smoker, his car always smells of smoke. Today he lent his car to Daisy who never smokes. Daisy is pulled over, the cop smells the smoke, searches the car etc.
The cop finds John's stuff in the car and yet can conclude that Daisy did not recently smoke, which would be the truth.

Secondly, smell lingers on much longer and much stronger than most smokers think, it is especially noticeable for non-smokers.

So if the cop says he does not think you smoked recently, that meant within the last hour or two, so he cannot charge you with DUI, but smell can linger in cars for days, giving him enough probable cause to search the car.

 

[refusetostop]

The scent of marijuana can be present even if it is wrapped up in plastic in the trunk of a vehicle. Marijuana has a strong odor that non-smokers can pick up very easy. Did you also know that a K9 has such a good sense of smell that if marijuana was ever smoked in a vehicle a K9 would 'Hit' on that vehicle every time (even months later). You stated that you consented to the search because you thought the officer was going to search the vehicle anyway. This is probably true as he may search your vehicle if he has reasonable suspicion that a crime has occurred (the scent of marijuana).