Todd Zinicola is pretty sure it’s the only time someone has smoked a Black & Mild cigar in a Virginia courtroom at the request of a judge.
He was defending a client in Fairfax who police searched after saying they smelled marijuana during a routine traffic stop. But Zinicola argued in court that it was impossible for the state trooper to smell the drug, wrapped in two layers of plastic wrap in the back seat, over the overpowering scent of the Black & Mild the man was smoking at the time.
The judge, Jane Marum Roush, who would go on to serve a brief term on the Supreme Court of Virginia, was unfamiliar with the product’s smell and invited him to light it, according to a transcript of the hearing.
“This is highly unorthodox but — here, just go ahead,” she said.
Zinicola wafted the smoke toward Roush, who ultimately agreed — the trooper couldn’t have actually smelled marijuana over the cigar’s overpowering aroma.
Advocates pushing to rein in such warrantless searches say the 2007 case illustrates just how difficult it can be for defendants to challenge police officers’ assertion that they smelled marijuana, a claim that’s impossible to document and frequently used as probable cause to rifle through a suspect’s vehicle or pockets.
“The problem is judges only see the cases where someone got charged with possession of marijuana or some other offense,” Zinicola said. “But a countless number of times, people get searched, are kept on the side of the road for hours, and police find nothing and they leave. It’s traumatizing.”
Many Virginia lawmakers and advocates in the criminal justice system appear to agree and legislation is advancing in both chambers of the General Assembly to prohibit smell-based searches for the drug.
The proposal was first raised earlier this year when the General Assembly passed decriminalization legislation that reduced the penalty for possession of an ounce or less of marijuana from a Class 1 misdemeanor to a $25 civil infraction.
Sen. Joe Morrissey, D-Richmond, championed the measure during the regular legislative session that began in January and it won approval in the Senate but was rejected in the House, where Majority Leader Charniele Herring, D-Alexandria, said she was unwilling to tie the hands of police officers until the drug was fully legalized.
The Virginia Mercury is a new, nonpartisan, nonprofit news organization covering Virginia government and policy.