5 ms·

It's simply wrong that smelling something is probable cause because of the potential for abuse.

maxerickson 11y ago
If you can't reasonably rely on the testimony of police officers, you have a really big problem. Like, require they take photos and they can just plant the evidence before they take the photo. Compare and contrast a dank whiff with gun fire. I'd like police to be able to respond to the sound of gun fire. I don't see how it is less problematic than responding to the smell of marijuana.
- mikeash 11y ago
  Standards should be (and, I believe, usually are) different for crimes that pose an imminent danger to the public.
  - maxerickson 11y ago
    I read the concern to be with the reliability of their testimony. I'm fine with the idea that simply smelling marijuana should not be probable cause. I'm not fine with the idea that it should not be probable cause because it creates an avenue for abuse of power. The checks on abuse of power should happen at a higher level in the system than making rules about what an officer can reliably testify about.
    - mikeash 11y ago
      Isn't the whole idea of requiring probable cause to prevent abuse of power? If we fully trusted the police then we wouldn't bother with any of this stuff. We'd allow police to search people at any time for any reason. But we don't trust them that far, so we put limits on what they can do. They can't do some searches without probable cause. Others require a warrant. The line shifts a bit in the case of imminent danger, because we prefer to take more of a risk with the cops than the criminals in that case. A smell of marijuana doesn't indicate a life-threatening situation so we're back to the whole abuse-of-power bit for why the police can't just search people entirely at will.
      - maxerickson 11y ago
        Probable cause just outlines a set of situations where use of power is authorized. It is the line between authorized and unauthorized use of power more than it is a check on abuse. If an officer pulls someone over just for the heck of it, their lack of probable cause isn't going to stop them from illegally searching the vehicle. I see what you are saying about limits on power and trust being mixed together, if someone is literally 100% trustworthy there is no need to limit their power. I still think it is reasonable to consider whether police can reliably testify that they smelled something (this should at least be a goal for a just system) separately from the question of whether they should be allowed to act upon smelling something.
        mikeash 11y ago
        Where's "testify" coming from? The only comments in the thread I see that mention testimony are from you. The question is about what's sufficient cause for a search, and why. And the reason an officer should be allowed to perform a search based on hearing gunfire but not based on smelling weed is because the latter isn't life-threatening. Testimony in any subsequent court case is a completely different matter.
        maxerickson 11y ago
        What other potential for abuse does allowing the smell as probable cause introduce? As far as I see, a cop can be a bastard with or without it, but with it he can later say he based a search on the smell (whether it was present or not).
    - dragonwriter 11y ago
      > The checks on abuse of power should happen at a higher level in the system than making rules about what an officer can reliably testify about. Why should there even be such rules? An officer, like any witness, can testify about anything they observe that is relevant to the matter under consideration by the court, and not barred by any generally-applicable prohibition (e.g., hearsay, etc., to the extent that is barred.) Whether such testimony is reliable is a matter for the court/jury receiving the testimony to consider, based on the statement, any evidence of bias of the witness, and any conflicting or corroborating evidence. Treating cops as privileged witnesses in any domain makes no sense, and seems to be contrary to the whole thrust of the Constitutional constraints on the criminal justice system, which are to protect the individual from arbitrary action by the government or its agents.
      - maxerickson 11y ago
        Yes, I inferred the idea that there should be rules from the comment I replied to and replied in order to reject it. I think I probably agree that police shouldn't base searches on smelling weed (I'd have to think about whether they should be able to stop a car and tell them to tone it down). What I don't agree with is making that determination based on concerns about fabricated statements about smelling weed.
        dragonwriter 11y ago
        > What I don't agree with is making that determination based on concerns about fabricated statements about smelling weed. The concern about fabrication by the government underlies much of the Constitutional restriction on government power in the criminal domain. I'd say that restricting government based on that concern is generally legitimate, and has a strong tradition in the US.
- emodendroket 11y ago
  > If you can't reasonably rely on the testimony of police officers, you have a really big problem. Yeah, but, you know, we actually do have such a problem: http://en.wikipedia.org/wiki/Police_perjury http://en.wikipedia.org/wiki/Police_perjury
- Dylan16807 11y ago
  There's a lot of people that will be truthful about evidence, but lie about motivation. And gunfire is a lot harder to lie about. Hell look at parallel construction.
copsarebastards 11y ago
If there were a bunch of attacks in my area where someone is throwing bleach in people's eyes (this has happened), I'd want the police to be able to treat the smell of bleach as probable cause. The problem is that marijuana shouldn't be illegal in the first place. But it is illegal, and it's also common enough that if a cop smells weed, it's believable. Part of the problem here is that we make too many things illegal, and since cops have some choice in which laws they enforce when, it gives cops far too much power.

If you can't reasonably rely on the testimony of police officers, you have a really big problem. Like, require they take photos and they can just plant the evidence before they take the photo. Compare and contrast a dank whiff with gun fire. I'd like police to be able to respond to the sound of gun fire. I don't see how it is less problematic than responding to the smell of marijuana.

mikeash 11y ago
Standards should be (and, I believe, usually are) different for crimes that pose an imminent danger to the public.
- maxerickson 11y ago
  I read the concern to be with the reliability of their testimony. I'm fine with the idea that simply smelling marijuana should not be probable cause. I'm not fine with the idea that it should not be probable cause because it creates an avenue for abuse of power. The checks on abuse of power should happen at a higher level in the system than making rules about what an officer can reliably testify about.
  - mikeash 11y ago
    Isn't the whole idea of requiring probable cause to prevent abuse of power? If we fully trusted the police then we wouldn't bother with any of this stuff. We'd allow police to search people at any time for any reason. But we don't trust them that far, so we put limits on what they can do. They can't do some searches without probable cause. Others require a warrant. The line shifts a bit in the case of imminent danger, because we prefer to take more of a risk with the cops than the criminals in that case. A smell of marijuana doesn't indicate a life-threatening situation so we're back to the whole abuse-of-power bit for why the police can't just search people entirely at will.
    - maxerickson 11y ago
      Probable cause just outlines a set of situations where use of power is authorized. It is the line between authorized and unauthorized use of power more than it is a check on abuse. If an officer pulls someone over just for the heck of it, their lack of probable cause isn't going to stop them from illegally searching the vehicle. I see what you are saying about limits on power and trust being mixed together, if someone is literally 100% trustworthy there is no need to limit their power. I still think it is reasonable to consider whether police can reliably testify that they smelled something (this should at least be a goal for a just system) separately from the question of whether they should be allowed to act upon smelling something.
      - mikeash 11y ago
        Where's "testify" coming from? The only comments in the thread I see that mention testimony are from you. The question is about what's sufficient cause for a search, and why. And the reason an officer should be allowed to perform a search based on hearing gunfire but not based on smelling weed is because the latter isn't life-threatening. Testimony in any subsequent court case is a completely different matter.
        maxerickson 11y ago
        What other potential for abuse does allowing the smell as probable cause introduce? As far as I see, a cop can be a bastard with or without it, but with it he can later say he based a search on the smell (whether it was present or not).
  - dragonwriter 11y ago
    > The checks on abuse of power should happen at a higher level in the system than making rules about what an officer can reliably testify about. Why should there even be such rules? An officer, like any witness, can testify about anything they observe that is relevant to the matter under consideration by the court, and not barred by any generally-applicable prohibition (e.g., hearsay, etc., to the extent that is barred.) Whether such testimony is reliable is a matter for the court/jury receiving the testimony to consider, based on the statement, any evidence of bias of the witness, and any conflicting or corroborating evidence. Treating cops as privileged witnesses in any domain makes no sense, and seems to be contrary to the whole thrust of the Constitutional constraints on the criminal justice system, which are to protect the individual from arbitrary action by the government or its agents.
    - maxerickson 11y ago
      Yes, I inferred the idea that there should be rules from the comment I replied to and replied in order to reject it. I think I probably agree that police shouldn't base searches on smelling weed (I'd have to think about whether they should be able to stop a car and tell them to tone it down). What I don't agree with is making that determination based on concerns about fabricated statements about smelling weed.
      - dragonwriter 11y ago
        > What I don't agree with is making that determination based on concerns about fabricated statements about smelling weed. The concern about fabrication by the government underlies much of the Constitutional restriction on government power in the criminal domain. I'd say that restricting government based on that concern is generally legitimate, and has a strong tradition in the US.
emodendroket 11y ago
> If you can't reasonably rely on the testimony of police officers, you have a really big problem. Yeah, but, you know, we actually do have such a problem: http://en.wikipedia.org/wiki/Police_perjury http://en.wikipedia.org/wiki/Police_perjury
Dylan16807 11y ago
There's a lot of people that will be truthful about evidence, but lie about motivation. And gunfire is a lot harder to lie about. Hell look at parallel construction.

copsarebastards 11y ago

If there were a bunch of attacks in my area where someone is throwing bleach in people's eyes (this has happened), I'd want the police to be able to treat the smell of bleach as probable cause. The problem is that marijuana shouldn't be illegal in the first place. But it is illegal, and it's also common enough that if a cop smells weed, it's believable. Part of the problem here is that we make too many things illegal, and since cops have some choice in which laws they enforce when, it gives cops far too much power.