It’s impossible to believe that 52 pounds of cannabis does not smell. Still, a recent report, influenced by the real seizure and confiscation of a large volume of tightly packed cannabis, indicates that this is likely. Since the analysis tested two ounces instead of more than fifty pounds, the findings might alter the way prosecutors combat police investigations based on the “in clear scent” theory.
In a report to be released in the March 2020 issue of Science & Justice, two researchers find that people can not detect cannabis wrapped in double vacuum-sealed containers. The research looked at the capacity of the human nose to detect cannabis as it was wrapped in various forms. The scent was also visible in informal packaging like Ziploc sandwich bags, but thicker materials and seals prevented the smell from escaping, according to the report.
“In clear scent” is a common-sense law enforcement policy that requires the police to inspect premises should they catch the presence of cannabis. Such searches are popular, particularly in traffic checks, but with the laws of marijuana shifting, smell-based searches are being contested in courts around the world.
“There is a tonne of empirical proof where at least certain cops think they detect something though they don’t,” said Alex Kreit, a specialist on drug regulation and a consulting professor at the Ohio State University Drug Compliance and Policy Institute.
The ‘in plain smell’ law
A typical scenario that reveals the limitations of the theory is that a smell-based check turned out to be cocaine, but not marijuana. An officer may assume possession of a substance and claim that they smell marijuana to search a car, although there was no proof that they could detect marijuana.
“This kind of evidence trend indicates that they tried to check the vehicle,” Kreit said.
The United States Supreme Court decided that as soon as an officer pulls someone over for a valid cause, the motive of the officer is meaningless. The cop could see the car, decide it was suspicious, and follow it until the driver did something illegal, Kreit explained. So any driver must finally do it, even though he’s going a mile over the speed limit.
If the vehicle has been pulled over, the clear scent theory will come into action as a possible cause. But the one-two-stroke with broad possibilities for dragging somebody over and depending on the human nose leaves the door open to profiling.
“It’s just an invitation to an implicit tendency to move in,” said Kreit. “The strongest, actually intentional prejudice.”
A plain smell arrest
On the winter day of 2017, Colorado State Trooper Shane Gosnell pulled over Mike — his name altered to maintain confidentiality — on the side of I-70 for a small traffic violation. Gosnell observed him move steadily down the passing road, tracked the vehicle for around 4 miles, The trooper then turned on the flashers and pulled the car over, Gosnell wrote in his arrest note.
“I might detect the scent of fresh cannabis emanating from the car,” wrote Gosnell, a police officer focused on highway drug smuggling. He carried out a probable cause check on the grounds of odour and “other signs,” according to the study.
Stop and search found a rubber-banded wad of thousands of dollars in currency, a secondary mobile phone, and two duffle bags loaded with around 52 pounds of cannabis. Gosnell charged Mike on allegations of unauthorized usage of the passing lane and possession with intent to distribute.
Can you smell cannabis in a vehicle?
Mike’s defence attorneys have taken a creative method in questioning the search: scientific. They employed Dr. Avery Gilbert, a physicist specialized in odours, and Dr. Joseph DiVerdi, professor of chemistry at Colorado State University, to analyze facts at the State Police Department.
“There’s a large table packed with bagged marijuana. I should never have expected anything like that, “said Gilbert. The defendant’s pot was already in a double vacuum-sealed container. “Coming as soon as we could to check those packets, I couldn’t detect a darn thing.”
Gilbert and DiVerdi conducted detailed air tests in collaboration with the police. They first took measurements of the air inside the proof bags that contained the vacuum sets, Gilbert said. Gosnell then loaded the seized duffle bags with pot, and DiVerdi took air samples from inside the duffels.
Out in their study, the amounts of six terpenes, compounds that give marijuana its flavour, were measured. They placed samples through a gas chromatography system to isolate and examine the compounds.
Evidence backed up their statement. The terpene rates were all too small to be observed by humans, Gilbert said. Their study is classified as a lawsuit that has not been put to the court. Instead, the prosecuting lawyers and the prosecution also signed a plea deal.
Mike pled guilty to distribution, a penalty of $13,500 and 48 hours of community service, according to court documents, and obtained a two-year conditional sentence — in which jail time is postponed due to probation. Defence attorneys refused to discuss the case. The District Attorney’s Office declined to return many calls to discuss the matter.
The art of detecting cannabis
Having this event under their belts, Gilbert and DiVerdi set out to check the human olfactory capacity to detect cannabis in a laboratory environment. The findings of their analysis (above) may provide a different method of protection against such basic scent searches: cannabis in double vacuum-sealed plastic does not scent.
We set up a typical experiment with a predetermined paired choice: a person detected two samples and had to select the one containing cannabis. We used two separate varieties of cannabis, one indica and one sativa, the other earthy and medicinal, according to the report.
They selected four separate packaging strategies based on real-life examples: zip packs, small plastic packs, pop-up cups, and a vacuum-sealed hard plastic bag inside another vacuum-sealed package. The open bowl of pot was also checked as a reference. Upon loading the bags of cannabis, they held them in big buckets for an hour to let the scent collect, and then told the test participants to sniff and pick.
Twenty-one cannabis users were blindfolded and individually tested in the ten sample pairs.
The clear glass cup, the Ziploc container, and the storage package were all recognized by all the participants. The dispensary-style canister produced mixed outcomes, but most people were still able to classify the cannabis sample accurately.
Vacuum packed tests, though, stumped the participants. They didn’t do much better than they would have by flipping a coin, getting it right half the time.
“People are going to fight,” said Gilbert. We had frequently gone back and forth from the two containers to smell without success.
It was challenging for a person to detect double-sealed cannabis in a regulated test condition, Gilbert said, so what about the possibility that a deputy could discover double-sealed marijuana inside a suitcase in a closed partition outside the car on the side of the highway?
Gilbert said, “it is unlikely.”v