Marijuana and Police Searches

A Pinellas County Judge has ruled that a non-consensual search of a person because an officer claimed to smell “the heavy odor of marijuana” was illegal. Police stopped two men exiting a hotel room because, according to the officer, they both smelled of marijuana. The officers then searched both of them, and although they had no marijuana, hey had a key to the hotel room which the officers then searched and found ecstasy. In ruling the search was illegal, the judge basically made a credibility assessment that the officer did not smell what he said he smelled.

Just last month, another Pinellas County Judge tossed out a search based on one officer’s smelling of marijuana. In that case, only one officer claimed to smell marijuana, while none of the other officers reported it.

The 4th Amendment guarantees us freedom from illegal searches and seizures. In Florida, the law recognizes three types of citizen-police encounters:

1. A consensual encounter, where the citizen is free to leave at any time;

2. An investigatory stop (also known as a “Terry Stop“), where the officer must have a “reasonable suspicion” that the citizen has committed, is committing, or is about to commit a crime; and

3. An actual arrest, which requires the officer to have probable cause that a crime has been or is being committed.

It seems that both the recent Pinellas County cases involved “investigatory stops” (#2, above) leading to actual arrests (#3), but the judge found that the officer did not have a reasonable suspicion to initiate the stop based on a claim of smelling marijuana. These two recent episodes show that drug possession cases can be successfully challenged by having a lawyer investigate the details of the search.