Police dogs with sensitive noses might have competition from human crime sniffers in Des Moines. Court documents describe three officers’ claims of olfactory prowess during one traffic stop on Oct. 5, 2019.
The officers testified that they detected less than 1 gram of marijuana in a closed container coming from a moving car over 100 yards away while breezes of 13 to 17 mph cut across traffic. How? By supposedly picking up the scent of burning marijuana through the open rear windows of their patrol car and pinpointing the source to a specific vehicle moving ahead of them — the length of a football field in the distance — with another car in between.
The story does not pass the smell test. Yet the officers insisted “without a shadow of a doubt” that the whiff gave them probable cause to stop the car. When they did, the officers found a few unlit marijuana blunts stashed in a covered ashtray. And because they also found a gun, the officers arrested the driver, Vernon Shumaker, for being a felon and drug user in possession of a firearm.
Prosecutors had what they needed for conviction. Their only hurdle was the Fourth Amendment, which demands that officers have probable cause before they conduct searches and seizures. Yet when Shumaker filed a motion to suppress evidence — based on the limits of human noses — the district court sided with the officers. The 8th U.S. Circuit Court of Appeals upheld the ruling on Dec. 29, 2021.
This case shows why people should be concerned about police tactics and the credulous courts that empower them. Some critics complain about activist judges. But equally corrosive to the Constitution are passive judges who accept government arguments without rigorous scrutiny.
Courts are the bulwark of civil rights. To make those rights something more than empty promises, citizens do not need an activist or passive judiciary. They need an engaged judiciary that puts the government to its burden. Yet too often, courts bend over backward to justify officers’ testimony, no matter how implausible — even when government officials have clear conflicts of interest.
Iowa law enforcement agencies, for example, use traffic enforcement to generate revenue through a moneymaking scheme called civil forfeiture. When officers seize cash and other valuables, civil forfeiture forces property owners to file affidavits and pay legal fees to recover their assets — even when they are innocent of wrongdoing.
Costs often outweigh the value of seized items, prompting many property owners to walk away. Despite reforms that the Iowa Legislature passed in 2017, some motorists permanently lose assets without ever being arrested or charged with a crime. Iowa lets police and prosecutors keep 100% of those assets for themselves.
Revenue is significant. “Policing for Profit,” a 2020 report from the Institute for Justice, shows that forfeiture generated more than $100 million for Iowa law enforcement agencies from 2000 to 2019.
That’s a strong financial motive for aggressive traffic patrols. Yet the Des Moines Police Department is unconcerned about the appearance of bias. Its Special Enforcement Team, the unit that nabbed Shumaker, specializes in seizures. Officers on the team testified that they focus on making “as many stops as possible.”
Even worse, an entire cottage industry has sprung up around the practice. The director of the Smell and Taste Center at the University of Pennsylvania Medical Center testified on Shumaker’s behalf, stating that the government’s case reeked. But prosecutors brought up their own expert witness: a trainer from Desert Snow, a company that trains cops on how to maximize civil forfeiture proceeds.
When this witness took the stand, he claimed that humans can do amazing things with their noses so long as they have the proper “training and experience” — which police departments can get from Desert Snow for a fee. Skeptics would sneeze at the argument, especially coming from a company so heavily invested in the art of policing for profit. Yet the assertion was good enough to pass judicial review.
Something is rotten in law enforcement. Unfortunately, the courts can’t smell it.
Robert Frommer is a senior attorney and director of the Project on the Fourth Amendment at the Institute for Justice in Arlington, Va. Daryl James is an Institute for Justice writer.
This article originally appeared on Des Moines Register: Opinion: Police's super noses fool no one, except the judge