D.Ore.: Lack of marijuana in car belies officer's testimony that he smelled marijuana; other officer didn't

The district court just does not find credible one officer's assertion that he smelled marijuana after his fourth trip up to the passenger window. Moreover, no marijuana was found in the car. The automobile exception did not support the search. United States v. Crain, 2011 U.S. Dist. LEXIS 40959 (D. Ore. April 14, 2011)*: A careful review of the totality of the circumstances regarding defendant's traffic stop fails to support Sergeant Passadore's assertion that a strong odor of marijuana was detectable on his fourth visit to defendant's car near the passenger-side window. Sergeant Passadore's claim that he could smell a strong odor of marijuana is not corroborated by Officer Chastain's testimony. Officer Chastain never reported a marijuana smell and did not note any odors in his report, even though he was near the passenger-side window during much of the traffic stop. Sergeant Passadore never asked Officer Chastain to confirm the alleged strong odor of marijuana. Additionally, the car windows had been open for at least ten minutes before the strong odor of marijuana was allegedly noticeable to Sergeant Passadore. Moreover, no significant amount of marijuana was found in the car. Sergeant Passadore admitted that the trace amounts found in the floor boards could not produce a strong odor. He also testified that the alcohol smell did not constitute probable cause for the search, and that he did not smell alcohol on defendant's breath.

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