In USA v. Timothy Brown, the First Circuit recently distinguished between a “marijuana blunt” and a “cigar” in the context of a police officer having “reasonable suspicion” to approach the car.
Rhode Island’s own, Justice O. Rogeriee Thompson, wrote the 29-page opinion:
…Brown argues that the reported observation of an individual smoking a “blunt marijuana cigarette,” absent any evidence of the detection of odor or other suspicious activity, and evaluated in conjunction with (1) the testimony of an officer that visual observation is insufficient to distinguish between a tobacco filled blunt and a marijuana filled blunt and (2) the absence of any observations of smoking or suspicious activity by Dineen and Waters, is insufficient to justify the stop.
…The district court found that this “central premise” of Brown’s argument was “false.” More specifically, the district court found that Joyce personally observed Brown smoking a small cigar in the distinctive manner that marijuana is smoked: holding one’s breath after taking a drag from the blunt that was being held between the forefinger and thumb. This finding is supported by the record. Nonetheless, Brown submits that Joyce’s observation should be discredited because (1) it is not possible to visually differentiate between a marijuana blunt and a tobacco blunt and (2) Joyce allegedly did not tell Dineen about his specific observations, namely the manner in which Brown held and smoked the blunt, until after Brown was arrested.
As support for his first contention, Brown relies entirely on Dineen’s probable cause/detention hearing testimony. On cross-examination, Dineen acknowledged that there was no way to know whether a blunt contained tobacco or marijuana unless one were to actually smell the contents of the blunt. We think Brown is attempting to make a mountain out of a mole hill. Read in context, it is clear that what Dineen meant was that absent any other evidence, such as smell, it would be impossible to determine with certainty the exact contents of the blunt. On review of the record, it is clear that this single piece of testimony does not discredit Joyce’s reported observation. Indeed, Dineen testified before the grand jury that Joyce reported to him that Joyce observed Brown holding the blunt tightly between his index finger and thumb and inhaling deeply without immediately exhaling. Dineen further testified that based on his training and experience, the reported observations of Joyce were consistent with marijuana smoking. It is well-established that the observations of experienced law enforcement officers are entitled to deference. See United States v. Dubose, 579 F.3d 117, 121 (1st Cir. 2009); see also United States v. Ruidiaz, 529 F.3d 25, 29 (1st Cir. 2008)(determination of reasonable suspicion “requires a practical, commonsense determination–a determination that entails a measurable degree of deference to the perceptions of experienced law enforcement officers”)(internal citation omitted).
Furthermore, an important concept that Brown conveniently fails to consider is that Joyce’s observation did not have to be correct to constitute reasonable suspicion. Constitutionally, all that is required is a “reasonable and articulable suspicion of criminal activity.” United States v. Chhien, 266 F.3d 1, 6 (1st Cir. 2001). Joyce’s observations, as stated in his police report and through Dineen’s testimony, suffice to pass this test. Cf. Rivera v. Murphy, 979 F.2d 259, 262-264 (1st Cir. 1992)(no reasonable suspicion where police officer’s affidavit stated only that “I observed the Plaintiff . . . involved in what I believed to be a drug transaction based on my observations, training, and experience . . . .”).