947 P.2d 695 - State v. Maycock

ORME, Judge

¶1(concurring):

¶2I fully concur in the court’s opinion, but feel constrained to address a point which, if taken out of context, might suggest we hold police officers in lower esteem than we do dogs. After all, following the Tenth Circuit’s lead, we say we will require corroboration of trained officers’ claims that they smelled marijuana but not corroboration of trained dogs’ “claims” that they did.

¶3Of course, we intend no such implication. The simple fact of the matter is that a dog’s sense of smell is “at least 100 times better than man’s.”1The Complete Book of the Dog 26 (Amanda O’Neill, ed.1989). In addition, police officers, like human beings generally, are more complicated organisms than are dogs. Totally aside from the remote possibility that an officer would deliberately fabricate, claiming he had smelled marijuana knowing he had not, an officer might subjectively sense that he smells marijuana without objectively realizing that his conclusion, however honest, is more a product of hope, conjecture, exaggeration, self-suggestion, or imagination than of a keen olfactory sense.2 Human memory is imperfect as well. Months later we might quite honestly testify that we said: “I smell marijuana,” when what we really said was “I smell smoke,” while merely thinking to ourselves that it just could be marijuana.

¶4A properly trained dog will indicate he smells marijuana only because he in fact does. His responses are reliable because they are strictly a product of his conditioning and exquisite sense of smell, uninfluenced by emotion or circumstance. An officer will indicate he smells marijuana because he actually does; or because he thinks he might; or because he thinks he smells something that could be; or as a rhetorical device.

¶5 *699Thus, the requirement of eorroboration is not a function of distrust of police officers, It is simply necessary as a check on human imperfection, entirely proper given our species’ marginal sense of smell and the subjectivity of our assessments based on our use of that sense.

¶6. "In recent years, 'sniffer dogs’ have been widely used by the police and the army to smell out substances such as explosives and illegal drugs, and have proved much better at finding these things than any machine.” The Complete Book of the Dog 27 (Amanda O’Neill, ed.1989).

¶7. Ebenezer Scrooge aptly commented on the limitations of human senses. When the ghost of Jacob Marley, perceiving that Scrooge did not believe in his existence, asked, "Why do you doubt your senses?,’’ Scrooge answered: “Because ... a little thing affects them. A slight disorder of the stomach makes them cheats. You may be an undigested bit of beef, a blot of mustard, a crumb of cheese, a fragment of an underdone potato.... I have but to swallow this [toothpick], and be for the rest of my days persecuted by a legion of goblins, all of my own creation.” Charles Dickens, A Christmas Carol, in A Christmas Carol and The Cricket on the Hearth 3, 19-20 (J.M. Dent & Sons Ltd.1963) (1843).