By Kent Willis, Executive Director

Police in the City of Chesapeake have come up with a novel technique for tracking down marijuana users.  They drive around town in patrol cars, turn on their intake fans, and sniff for the scent of someone smoking weed in a nearby car.
Police claim they are not only able to determine when someone is illegally inhaling, but also the precise moving vehicle from whence the inhalables are emerging.  Once they know that, they stop and search the offending car and its passengers.
All of us have smelled something fishy, skunky or illegal wafting through the vents in our moving car.  Identifying the odor is relatively easy, but determining exactly where it’s coming from would seem to be almost impossible.
Yet the issue came up in a court hearing last week in Chesapeake.  In that case, police tracked a car driven by an African-American man after they smelled marijuana through their patrol car vents.
Following the malodorous car into the parking lot of a local club, the police approached the driver when he emerged in a cloud of marijuana smoke.  The smoke provided all the reasonable suspicion the police needed to legally search the man and his car, where they found heroin (but, oddly, no marijuana).
The judge ruled that because the police smelled marijuana smoke coming directly from the parked car, they had a right to search it.  He did not rule on the dicier question that concerns us here— that is, whether or not the dubious process of sniffing marijuana through the vents of a moving patrol car constitutes reasonable suspicion to stop and search someone else’s car.
A few olfactory experts have already commented on this informally, and so far all of them say they can’t believe police in one moving vehicle can with any reliability pick out another moving vehicle based on a directional sense of smell.
In the end, if the Chesapeake police continue to use this technique, a court will decide its validity based, we hope, on some kind of empirical evidence.
Why then are we concerned?  There are two problems with using such a vague technique to stop and search cars, even if the police can prove it is sometimes reliable.  One is the huge hole it pokes in the Fourth Amendment, already weakened by a series of recent Supreme Court rulings expanding the right of police to search cars and the people in them.  If the police have yet another reason to stop and search cars, they are getting pretty close to being able to do it anytime they want.
The second is racial profiling.
Concerns arising from anecdotal evidence of racial profiling — the tendency to pull over minority drivers at a far greater rate than non-minorities — have led many states to pass laws requiring police to keep records of their traffic stops that include the race of the driver.  This allows for regular review of police behavior to determine if racial bias is at play in law enforcement.
Virginia has tried to pass such a law on several occasions, but it never makes it very far into the legislative process.  In one of the more sadly comical General Assembly moments, representatives of the state police actually showed up a few years ago to provide proof to lawmakers that there was no racial profiling in Virginia.  According to the police spokesperson, when asked in a survey if they had ever profiled based on race, every single police officer in Virginia said no.
Sorry, but that’s a little like asking the fox if he had anything to do with the chickens who disappeared while he was guarding the henhouse.
With no state law requiring review of racial bias in policing, the ACLU of Virginia has consistently opposed the expansion of police search powers.  This includes bills in the last several legislative sessions that would give police the power to detain — and thereby search —individuals being cited for minor misdemeanors.
It is too soon to say that what the police in Chesapeake are doing is preposterous, but it’s not too soon to tell them to stop.

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