I have a confession to make. When I was 15 years old, I went to my first arena concert, a Loverboy concert (the “Get Lucky” tour, for those of you that care, they opened with “Turn Me Loose”, that intro keyboard part was made to kick off a rock concert…, much in the way that REO Speedwagon’s “Riding the Storm Out” was made to close a show), at St. Louis’ “Checkerdome”. When my dad picked me up, I smelled like I was hanging out in a weed sauna with Snoop Dogg, Cyprus Hill, and Bob Marley’s kids (don’t they all sing and smoke?).
Anyway, I was wrongfully accused of smoking weed. Everyone (but my dad) knows that EVERYONE at a Checkdome concert smoked weed–lighters in the air, etc…. Fortunately, my dad bought my story, because it happened to be the truth. Unfortunately, many Orlando citizens are not so lucky, and wind up with possession of cannabis charges because an officer conducts a search based upon the odor of cannabis. Oddly enough, often times an officer smelling weed uncovers no weed at all, but rather a possession of cocaine charge, or even pills. The reason for this is two fold. First, the officer really DIDN’T smell weed, but merely needed a reason to search. And second, the odor of burnt cannabis is evidence of a “completed” crime. If the cannabis is burnt–it no longer exists–it’s carbon, ashes, dust (duh).
So, is it legal for an officer to search you just because he smells marijuana?
There are several court cases that have discussed this issue, but the bottom line is that the “odor of cannabis ALONE” cannot support a search. Here’s some examples that prosecutors commonly site as evidence that odor alone is enough to search, and why they’re wrong.
The first favorite is State v. T.P., 835 So.2d 1277 (Fla. 4th DCA 2003). In T.P., the court allowed a search based upon the odor of weed because there were several other factors justifying the search. Namely, the area was known for it’s high drug activity, and when T.P. saw the police, he quickly evaded their view. It was also odd to law enforcement that T.P. was simply chilling in a car from which the officer could smell marijuana. Based on T.P., the police need MORE than just the odor of cannabis.
The next case often cited by prosecutors is State v. K.V. In K.V., a security guard mentioned to a cop he knew that a car smelled like marijuana. As the cops approached, they observed a baggie of weed in the car. Again, it was not the odor alone, but also the drugs seen in plain sight that caused trouble in K.V.‘s case.
Alright, what about State v. Betz, 815 So.2d 627 (Fla. 2002). This is a Florida Supreme Court case, so what’s the high court have to say? Just what we’ve been saying, that “the smell of burnt marijuana, in combination with other circumstances, leads to a law enforcement officers’ possession of probable cause to search the entirety of a motor vehicle.” Id. at 633.
So there you have it. Hang around your weed smoking friends at your own risk, knowing that it’s possible a search is just a sniff away. Of course, it won’t be a legal search, but as the saying goes, “You can beat the rap, but you can’t beat the ride to jail”.