Court Calls Bullshit On Cop Who Claimed He Could Smell Weed In Sealed Bags In A Moving Car From His Own Moving Cruiser
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It doesn't happen nearly often enough, but it's always enjoyable to watch a court lay the smackdown on a law enforcement officer's literally unbelievable assertions. And this case [PDF] -- via FourthAmendment.com -- contains a claim from a supposedly trained and experienced officer that's so ridiculous, the court has no choice but to discredit his testimony completely.Indianapolis police officer Daniel Hiser performed a traffic stop that resulted in the discovery of marijuana and a handgun in Davon Gray's possession. But it's the events leading up to the stop that triggered the court's BS detector -- events that include Officer Hiser's apparently miraculous olfactory sense.Officer Hiser is surprisingly humble about his superhuman gift, something that has served him well during his years as a law enforcement officer.Though Officer Hiser has never had his sense of smell tested and does not generally consider his sense of smell extraordinary, he estimates that he smells raw marijuana at some point during approximately a quarter of the traffic stops he conducts. But any officer with similar training ("Officer Hiser received a 'couple of hours' training on the appearance and odor of multiple [drugs]...") could be expected to smell marijuana in a stopped car with its windows down. Officer Hiser, however, can smell it in moving vehicles with their windows up located a few car lengths away from his impressive nose.At about 3:30 p.m. on January 11, 2018, Officer Hiser was patrolling in his police cruiser in the East District when he turned south onto Arlington Avenue from 31st Street. As he moved into the left lane of Arlington Avenue behind a Dodge Stratus driven by Gray, Officer Hiser testified that he could smell the strong odor of raw marijuana. Officer Hiser believed the scent to be coming from the Stratus, so he continued southbound to try to verify that this vehicle was the source of the aroma. (Filing No. 72-1 at 5.) While cars were not "bumper to bumper," there was still some traffic present. Several blocks later, around 23rd Street, the Stratus moved into the right lane, and Officer Hiser could no longer smell the marijuana odor. Officer Hiser then switched lanes and the fragrance returned. Id. The Stratus then slowed, turning into an Express Mart at the corner of 21st Street and Arlington Avenue. Again, as the Stratus departed the lane, Officer Hiser testified that the scent vanished. At this point, Officer Hiser decided to stop the vehicle and pulled behind the parked Stratus, initiating his emergency lights and siren. Hiser could not state with any certainty whether he had ever performed this superhuman feat of olfactory awareness prior to this stop. He also could not state with any certainty whether his cruiser's windows were down or whether Gray's windows were down. The 3.59 ounces of marijuana found in the car Hiser claimed smelled like weed was located under the front seat inside resealable plastic bags.Yes, courts are supposed to defer a bit to "trained" and "experienced" officers and their assertions about their ability to determine whether something is reasonably suspicious or objectively innocuous. And courts far too often reward unreasonable assertions made by cops with good faith passes or denials of motions to suppress.But the court isn't impressed by Hiser or his freak-of-olfactory-nature superpowers. You have got to be fucking kidding me, says the court.The Court agrees with Gray that it is incredible that Officer Hiser—who self-admittedly does not have a heightened olfactory system—could smell the scent of two resealable sandwich sized plastic baggies of unburnt marijuana coming from a moving vehicle when patrolling in his cruiser. This occurrence is not only contrary to any common experiences, but is "implausible" and seemingly "contrary to the laws of nature." Unsurprisingly, there is exactly zero precedent that supports Hiser's "if I smelt it they probably were in the process of, um, dealting it" theory of reasonable suspicion. (Emphasis in the original.)The dearth of appellate caselaw considering—let alone upholding—Terry stops solely based on an officer smelling three ounces of raw marijuana emanating from two small ziplocked sandwich baggies located under the front seat a moving car, while he drives his own vehicle, supports a finding of incredibility of Officer Hiser's testimony as a matter of law. In fact, it can only find precedent that quotes an officer just as full of shit as Hiser."The arresting officer's testimony that he observed defendant exchanging a 2-inch glass vial with a dark top, from a distance of approximately 74 feet, from a moving patrol car, after dark, is, in our view, contrary to common experience and, as such, was incredible as a matter of law and did not support the verdict." Away goes the stop, which means away goes the evidence. And without the evidence, the government has nothing, which it has acknowledged by dismissing Gray's indictment.It's already impossible to believe cops smell as much marijuana as they do -- something that handily allows them to start tossing vehicles and patting down vehicle occupants without troubling themselves with a warrant. This cop just took the lie too far.
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posted at: 12:00am on 22-Jul-2021
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Content Moderation Case Study: Spotify Comes Under Fire For Hosting Joe Rogan's Podcast (2020)
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Summary: In May of 2020 Joe Rogan, whose podcast was considered one of the most popular in the world, signed an exclusive deal to host the podcast on Spotify. Rogan, who has been described as America's Bro Whisperer by the AV Club, is a comedian/actor whose podcast is known for extended discussions on a variety of topics. He frequently delves into controversial subjects and explores potentially extreme ideas, conspiracy theories, and hoaxes.Given that history, it was not surprising that people quickly raised questions about why Spotify would platform Rogan amidst various controversies regarding the content on his show (both from some of his guests and from Rogan himself), and about how much responsibility Spotify should take for that content. Spotify already has a history, on the music side of its business, of removing some artists from its platform.In the Fall of 2020, things came to a head when a group of Spotify employees complained to management about Spotify being a platform for Rogan, and complained about some particular Rogan content. Reports revealed an all-hands meeting in which Spotify founder and CEO Daniel Ek discussed these requests and explained his reasoning for keeping Rogan on the platform."In the case of Joe Rogan, a total of 10 meetings have been held with various groups and individuals to hear their respective concerns. And some of them want Rogan removed because of things he's said in the past." -- Spotify CEO, Daniel Ek Spotify did say that it refused to host some of Rogan's older episodes, but after reviewing some more recent ones, said that they did not violate the company's policies. The company overall seems happy with having Rogan on its platform. A NY Times report says that among top Spotify leadership, people familiar with the company say, the notion that Mr. Rogan presents any kind of regrettable executive headache is laughable. However, there remain accusations that Spotify is simply profiting from the outrage over Rogan being on the platform. Spotify has said that Rogan is drawing more users than the company expected, and even has a special category for Rogan's podcast. As the NY Times article notes: So central is he to the company's fortunes that the podcast is listed as its own category on the app: Sports. Music. News and Politics. Joe Rogan.More recently, concerns were raised after Rogan gave advice that could be seen as discouraging people from getting a COVID-19 vaccine, again leading to questions about how much Spotify should moderate the content of the podcast. Rogan clarified his comments and suggested that no one should listen to him for advice regarding medical issues. I'm not a doctor," he said. "I'm not a respected source of information, even for me."However, over the last few months, people have noticed that dozens of Rogan's older podcast episodes have disappeared from Spotify. Some of these were first noticed in September of 2020, and by April 2021, it was reported that Spotify had deleted 42 older episodes. Another report noted that another 15 to 20 were earmarked for deletion but had not been deleted due to concerns about bad optics. Many fans of Rogan's podcast reacted angrily to the news of some episodes being deleted, calling it censorship, and threatened to no longer use Spotify.Company Considerations:- How can a company effectively and efficiently moderate very long podcasts, like Rogan's, which can go up to 2-3 hours?
- How does a company draw the line between someone's opinion vs spreading misinformation?
- How should Spotify handle competing demands from two very strong constituencies: Rogan's supporters and detractors?
- How much (if any) should bottom line financial interests be taken into account when considering content moderation questions?
- How much should internal employee complaints be taken into account in reviewing content moderation policies?
- Is removing older podcasts or podcasts with controversial guests or topics an acceptable strategy?
Issue Considerations:- Will threats of stronger moderation or removal of podcasts lead to more careful consideration by podcast hosts and guests? Will it lead to important, but still controversial, topics not being discussed at all? Or will it result in a combination of both?
- Should internet platforms hosting podcasts be responsible for the content in those podcasts? Would the answer to this question be different if it's an openly available podcast distributed via RSS on all platforms, compared to an exclusive podcast only available on a single, closed platform like Spotify?
- Is public pressure more effective at policing controversial content than expecting a platform to moderate the content? In the example of the information on vaccines, public outcry resulted in Rogan walking back his comments soon after.
Resolution: Joe Rogan has said that part of the reason he went to Spotify in the first place was that he was getting increasingly uneasy with YouTube (where he was hosting video versions of his show) after the company removed or demonetized other controversial podcasts and video shows.And while he pushed back at some of the criticisms of his podcast, he also said that Spotify is not censoring the content of his show. He claims that he knew that Spotify did not want to host certain older episodes, but that the company has given him no rules regarding future content."They don't give a f**k man. They haven't given me a hard time at all. There were a few episodes they didn't want on their platform, I was like 'okay, I don't care'."But other than that, in terms of what I do in the future, the big test was having Alex Jones on... Alex Jones and Tim Dillon was like one of my favorite podcasts." -- Joe Rogan He separately made some comments regarding employees at Spotify who were upset about content on his podcast.I don't know what the actual conversation has been from Spotify talking to these employees. But if these employees are listening, I would tell you, emphatically, I am not in any way anti-trans. I am 100 percent for people being able to do whatever they want, as long as it doesn't harm other people.I'm talking off the top of my head. And a lot of times I'm saying shit that I don't even mean. Cus I'm saying it because this is a fucking podcast. And if you have a problem with people saying terrible shit and you work for Spotify, maybe you should listen to some of the lyrics. Okay, cus some of the lyrics and some of the fucking music that you guys play over and over and over again makes my shit pale in comparison.But I get it, you're a 23-year-old woke kid and you're working for this company and you think you're gonna put your foot down, I get it. -- Joe Rogan As for the overall situation, Rogan has suggested that the controversy around all of this has only helped him become more famous, though others have argued that he is having less impact on the wider zeitgeist and a review of how often his name is searched for suggests interest has decreased since the move to Spotify.Originally published to the Trust & Safety Foundation website.
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posted at: 12:00am on 22-Jul-2021
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