Quote Originally Posted by jamstigator
I know cops DO use smell as probable cause, but I have a problem with that. The problem I have is...there's no way to prove whether they did actually smell anything or not. All they have to do is SAY they smelled something, even if they didn't, and who could ever prove otherwise? If they say they smelled something, well, then it must be so, right? That's wide open for abuse, and because that's so, it almost certainly IS abused as a reason for probable cause, probably frequently.

If I were a cop, I'd use that all the time -- why use anything else as an excuse when that one isn't proveable either way?

"Why did you search this man's car, officer?"

"Why, I thought I smelled [gunpowder/cannabis/burning crack/whatever], your honor."

"Did you find anything?"

"No, I didn't, your honor, but I sure smelled it!"

"Well then, the search is legal. Good job."

There are no real checks and balances there. There's no way to defend against that, because you can't prove the cop DIDN'T smell what he said he did, and the only proof there is that he did smell what he said he smelled is because he said so. That would be acceptable if cops automatically dropped dead if they lied, but they don't, and in this case there is every incentive to lie, and little incentive to tell the truth.
I agree with what you say, Jamstigator. "Probable odor" is a tough one to defend against, and it's completely a matter of the cop's side of the story or his subjective judgement. But, then, so is weed or paraphernalia in plain sight. Sure, they can shine their little mobile cams in there and shoot pics, and they can take what they find in an evidence bag, but what they say they see out in the open is very subjective, too--or at least very subject to exaggeration in testimony.

The disadvantage everyone but officers has is that officers are already granted a higher "credit" toward truth in legal testimony when they walk in the courtroom doors because they're sworn peace officers. I don't mean "sworn in" like when they come to testify, which also happens, but sworn with an oath to the state and their hiring agency when they begin their jobs to uphold and defend the law and to tell the truth (many courts don't swear them again for trials or hearings because they're already sworn as a part of their jobs). Anyway, unless there's clear evidence that cops are not telling the truth, the judge is automatically assuming that they are telling the truth just because of who they are.

This whole thing makes it rough for the little guy--the kid who's just driving around in his car with a buddy, toking.

UTDSmoker, I still think you need to tell your parents about this. They won't like it, but they'll like it a whole lot more than when they find out about it later and realize you didn't tell them when it happened. You're going to be in a world of hurt when that occurs, and they will find out. I think we already have fairly convincing evidence that you don't cover your tracks too well.