Often times, upon stopping a motor vehicle, police will claim they smell marijuana leading to a search that yields not only marijuana but other controlled substances. If the officers claim they smell marijuana, under current case law, law enforcement has a right to search the individuals in the car as well as the interior of the car. The leading original case that gives law enforcement this right is State v. Betz, 815 So. 2d 627 (Fla. 2002), a Florida Supreme Court case.
We’ve handled countless cases in which a vehicle was stopped and the law enforcement officer claims to have smelled marijuana. However, in some scenarios, when the officer searches the vehicle and people or person within the car, no marijuana is found yet the search yields other types of controlled substances, often resulting in a felony arrest.
The facts must be thoroughly analyzed by an attorney experienced in search and seizure law. This scenario may come down to credibility of the officer or officers compared to the individual or persons within the car. Issues to consider are “How many officers were at the scene when the marijuana was allegedly smelled?” “Did more than one officer smell the marijuana?” Were there other people in the car that are credible individuals that could testify unequivocally that marijuana was not being smoked or that a person could not smell fresh marijuana itself that was seized? Would such an individual be willing to testify in court at a motion to suppress hearing or trial? What kind of criminal arrest or conviction history do witnesses have? Does the officer claiming he or she smelled marijuana have issues within his or her personnel or human resource file which are available through a public records request in Florida? Or, in some circumstances, the question may be, “If the officer claims he smelled marijuana, why there was no marijuana found in the car?!”