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.
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.