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Appeals Court Says It's Entirely Possible For Cops To Pinpoint Marijuana Odors In Moving Cars

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Cops are still claiming they can detect the odor of marijuana in moving vehicles. Not only that, they claim they can pinpoint the source, even when in traffic.Not every court has been supportive of this speculative fiction. A federal court in Indiana found an officer's testimony literally "incredible" when he claimed he could smell the odor of marijuana emanating from two sealed plastic bags located inside a car traveling in heavy traffic with its windows up. The court said this testimony was not only "implausible" but "contrary to the laws of nature."The same can't be said for this decision from the Eighth Circuit Appeals Court, which originated in Iowa. The same claims were made here by two officers, who used their apparently superhuman olfactory senses to locate weed in a passing car -- one that similarly travelled through heavy traffic. In this case, both the cop car and the targeted car had some windows down. But even so, it's difficult to believe officers were capable of pinpointing the odor in traffic while dealing with "swirling winds."The cops lucked out on this stop. They discovered some marijuana ash and an unsmoked blunt during the stop. They also recovered a handgun, which led to the federal charges Vernon Shumaker was hoping to have dismissed due to the apparent unreasonableness of this search.Here's how the stop was effected, according to the Eighth Circuit's decision [PDF]:

On October 5, 2019, the officers were on patrol in a marked squad car. Officer Steinkamp drove the car, Officer Garrett sat in the front seat, and Officer Minnehan sat in the back seat. The squad car’s front windows were up, but its back windows were down. At 5:49 p.m., the officers were driving westbound on a city street behind a black sedan that had its windows up. According to weather records, the wind was traveling between 13 and 17 miles per hour. The officers did not smell marijuana while driving behind the black sedan.As the officers approached a four-way intersection, they saw a red Chevrolet Impala traveling eastbound abruptly turn left in front of the oncoming black sedan. The Impala’s “passenger side window was down.” At the intersection, the officers turned right and started driving northbound on the same street as the Impala. Shortly after making the right turn, the officers “started smelling the odor of marijuana, and that’s what drew [their] attention” to the Impala.The squad car was approximately 100 meters behind the Impala when the officers first smelled the odor. The Impala was in the left lane, while the squad car was directly behind the black sedan in the right lane. The officers did not believe that the black sedan was the odor’s source because its windows were up and they never smelled marijuana while following the black sedan before turning right.
Both officers claimed to have smelled burning/burnt marijuana. They also made other ridiculous claims -- ones ignored by the court.
The officers changed lanes and sped up to position the squad car close behind the Impala in the left lane. A black truck was immediately in front of the Impala. An SUV was farther ahead in the right lane. The road was busy at that time. The officers drove directly behind the Impala “for several blocks”—approximately 30 seconds—to “make sure that [they] kn[e]w for certain without a shadow of a doubt that [it was the] vehicle that has the odor of marijuana emitting from it.”
You can't travel "several blocks" in thirty seconds, not even if you're on a freeway. The cops either followed the car for several blocks or thirty seconds. They could not have done both. And they still insisted this method of wandering around in traffic allowed them to pinpoint the location of the odor.The officers claimed the driver had been smoking and driving, thus justifying the search. The search uncovered no evidence of this claim.
In addition to the marijuana cigarettes, the officers also recovered a digital scale with trace amounts of marijuana residue on it and a loaded nine-millimeter pistol in the center console. They did not find embers or smoke in the ashtray or a lighter.
Expert witnesses on both sides offered their findings, which were contradictory. The court decided to side with the officers' expert, who claimed it was possible to pinpoint marijuana odors while driving in heavy traffic. But he also said this, which applies directly to this case:
He admitted that marijuana cigarettes are hard to smell if they are in a closed container and that none of the marijuana cigarettes found in Shumaker’s ashtray appeared to be burning.
The Appeals Court sides with the cops and lower court's findings. Why? Because the officers were consistent in their claims they smelled marijuana.
Videos of the stop show the officers making statements both before and during the stop indicating they smelled burnt marijuana coming from Shumaker’s car while driving behind him.
So what? This is like saying no excessive force was applied because officers kept chanting "stop resisting" while they attacked an unresisting suspect. A conclusion like this simply encourages officers to maintain steady chatter about suspected illegal activity whether or not they've actually observed any. As long as officers talk a good game on camera, courts can be expected to grant deference to their cover stories.The court also says the ends can be used to justify the means.
“Officers Steinkamp, Minnehan, and Garrett testified consistently that they smelled burnt marijuana while driving behind Shumaker” and their testimony was “corroborated by their on-video statements, Shumaker’s behavior, Frye’s expert testimony, and the evidence recovered from Shumaker’s car.”
Well, I guess that's it. If an officer claims to smell marijuana -- even in situations in which it would seem almost impossible to do so -- and then finds marijuana, the stop and the search are justified. In the cases where the officer's nose has failed him and no contraband is found, the officer loses almost nothing by rolling the dice on this unsupported claim. People stopped but never cited or charged rarely sue. Lawsuits like these are mainly filed by people facing criminal charges. The court says the discovery of contraband excuses flimsy pretenses for stops and searches. And that's binding in this circuit.

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posted at: 12:00am on 15-Jan-2022
path: /Policy | permalink | edit (requires password)

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US Court To Gruyere Cheese People: No, You Can't Ban People From Calling Their Cheese Gruyere If They Aren't Your Neighbors

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One of the more annoying trends in intellectual property is when regional consortiums try to lock up terms or language around a specific style of product with arguments that only that region can produce a certain thing. If you're familiar with this concept, the first thing to leap to your mind will likely be one French wine group's control over the term "champagne" in certain regions. Another example would be a consortium of Belgian chocolate makers trying to assert that nobody can advertise "Belgian-style chocolate" unless it comes from one of them. It's all very silly, as it attempts to take a term that everyone recognizes as describing the style of a product and transform it into locked up language to be controlled by some specific originators. Like I said, silly, though, far too often, these consortiums get their way.Not the case in the United States for a group of French and Swiss cheese-makers in the area surrounding Gruyeres, who attempted to get the term "gruyere" trademarked. After the the U.S. Dairy Export Council opposed the mark, and the USPTO somehow got this right for once and rejected the application over the term being generic, the Interprofession Du Gruyere and Syndicat Interprofessionel du Gruyere took the matter to the Eastern District of Virginia courts only to find the judge there has ruled against it too.

After a lengthy legal fight, a U.S. District Court judge has ruled that Gruyere cheese does not have to come from the area in or around Gruyeres, Switzerland in order to be labeled Gruyere, writing in his decision that Americans don't associate that cheese with that town. The Interprofession du Gruyère and Syndicat Interprofessionel du Gruyère — the associations that represent Swiss and French Gruyere, respectively — filed the lawsuit after they were denied trademark protection for the word "Gruyere" last year."It is clear from the record that the term GRUYERE may have in the past referred exclusively to cheese from Switzerland and France," the judge wrote, according to the AP. "However, decades of importation, production, and sale of cheese labeled GRUYERE produced outside the Gruyère region of Switzerland and France have eroded the meaning of that term and rendered it generic."
All of this legal actions follows months of the two foreign groups sending all kinds of threat letters to a variety of American dairy companies that produce gruyere cheese. Non-helpfully, those threat letters also often came with suggestions about what these companies should call their cheeses instead: alpine cheese and mountain cheese are both among the dumbest of the suggestions.Now, while both parties have said they plan to appeal this ruling, it would be quite nice if that only resulted in a continued litigation smackdown. There is no un-ringing this bell; Americans have been consuming gruyere cheeses forever at this point and I'd wager the vast majority of them, like me until writing this post, weren't even aware that a city called Gruyeres in Switzerland existed.What's next? Belgium style ales can't be called that unless they come from that country? IPAs that can only originate in, ironically, England? Or maybe we can just stop being so absurd about all of this instead.

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posted at: 12:00am on 15-Jan-2022
path: /Policy | permalink | edit (requires password)

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