Tuesday, February 12, 2013

CAN NOSEY OFFICERS SMELLING MARIJUANA SEARCH YOUR HOME WITHOUT OBTAINING A SEARCH WARRANT

Your favorite Clearwater Criminal Defense Lawyer is often asked about the grim consequences of a nosey law enforcement officer who claims he smells marijuana as he stands at the door of your home. Can the officer conduct a search of your home without first obtaining a search warrant? And if drugs are found should the Court grant a Motion to Suppress?

Van Gogh's self portrait with pipe establishes that had he lived in Tampa Bay, Florida a search warrant would have been required to take his marijuana at his home and charge him with the crime of possession.
 Van Gogh, Pot Pipe, 1887
First, it's important to note that at least one recent case, Kentucky v. King, from the United States Supreme Court makes a mockery of the fourth amendment protection of requiring a Search Warrant with an affidavit based on probable cause that describes with precision the place to be searched as well as what is expected to be found at that place and why it's expected to be found there. 
In the case smell of marijuana combined with an officer's belief based on noises heard at the home that evidence was likely being destroyed was enough to trigger the exigent circumstances exception.

Justice Ginsburg's dissent noted:

“How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and …forcibly enter?” Because the amendment’s “core requirement” is clear - officers must have probable cause with a search warrant before they break into a home.

Officers have been shown to haven many incentives to lie just to make an arrest. Unfortunately the Pinellas County Sheriff's Department in Tampa Bay, Florida has recently been found to have lied even when trying to obtain information for search warrants and lied to gain entry into homes, so it's even that much easier just to lie about smelling marijuana and hearing noises consistent with destruction of evidence to enter a home.
A recent Florida Case in the 2nd DCA, State vs. Roman, overturned a trial court which granted a Motion to Suppress evidence, but in that case that case there was much more evidence consistent with marijuana than just smell. 
A pending case, Florida vs, Jardines, now before the U.S. Supreme Court was appealed from a Florida Supreme Court case dealing with a drug dog alert based on a whiff of marijuana. The Florida Supreme Court in that case found that Officer's acting on the marijuana smell was a substantial government intrusion of the sanctity of a Florida home.
Clearly, no law enforcement agency should be able to search a home based only on the smell of marijuana. 
So what do police do? They gather more evidence. Here's an excerpt from an interesting source, Police Chief Magazine, advising Florida officers to focus on training and experience in drug detection in an article titled The Nose Knows:
The ability of an officer to explain and justify the accuracy of his perceptions is important when he or she relies on those perceptions to formulate probable cause. For instance, a Florida court held that a police officer had probable cause to search a vehicle after smelling burnt marijuana, in part because he had 20 years of experience and had smelled marijuana hundreds of times.
One wonders if that officer's experience and training was advanced  by the smelling marijuana in his own home? And in many of these cases there is no burned marijuana smell at all. What about an officer's actual ability to smell unburned marijuana as in many of the marijuana grow house cases?

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