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How An Officer's Sense Of Smell Trumps Your Fourth Amendment Rights

Originally from California, I moved to Florida in 2004 and immediately fell in love with the Sunshine State. The food. The culture. The weather (at least six months out of the year). But the one thing I could never quite understand about Florida - let alone the Deep South in general - is its arcane attitude toward marijuana.

More progressive states - Colorado, Vermont, and, of course, California - are quickly realizing what our friends down here in Dixieland do not. Marijuana - by and large - is relatively harmless, is far less dangerous than legal drugs (alcohol, nicotine, and prescription painkillers), and has immense profit potential for states that have been hit by the fledging economy.

Colorado has legalized personal use amounts. California has effectively done the same with its laid back "medicinal" marijuana laws. Vermont recently decriminalized possession up to one ounce, opting for civil penalties (similar to a traffic ticket) as opposed to criminal sanctions.

While the rest of the country seems to be recovering from the "reefer madness" that has cost us billions of dollars and countless lives with needless prosecutions and draconian mandatory minimum prison sentences, Florida still seems to be living in the past.

Notwithstanding the federal system (that's a whole other story), Florida law requires mandatory prison time for trafficking in marijuana. And since drug trafficking in Florida is based on possession by weight, not the offender's intent, many people unaffiliated with violent crime or the drug trade who have small, personal-use grow operations in their homes are finding themselves in state prison.

In the spirit of Florida's attitude on marijuana, no judicial action best typifies my adopted home state's backwoods priorities (bestiality was finally outlawed in 2011 after three failed legislative attempts) than that of the Florida Supreme Court's decision in the 2002 case, State v. Betz.

The Betz case stemmed from a traffic stop near Tampa that occurred on March 9, 1998. Mr. Betz was apparently driving with a headlight out when two police officers pulled him over. When asking Mr. Betz to produce his license and registration, one of the officers allegedly detected a "strong odor of marijuana."

Based on the smell, the officer conducted a pat-down of Betz as well as a search of the entire car, including the trunk. The officer recovered one bag of marijuana from Betz's pocket and a second bag of marijuana from Betz's trunk.

Charged with possession of marijuana, Betz's attorney filed a motion to suppress based on the search. After all, this was a simple non-criminal traffic stop. The officer should have issued Betz a ticket and sent him on his way. How did this traffic stop escalate into a full-blown criminal investigation?

Was the smell of the marijuana really enough to supersede Betz's right against a warrantless search of his car?

When the case made it all the way to the Florida Supreme Court, the concept of the smell of marijuana alone constituting probable cause for a warrantless search of a vehicle was hardly novel.

As far back as 1975, Florida courts were stating that "the sense of smell by one knowledgeable as to the identity of an odor, is just as valid a basis for finding

probable cause, as is the use of the other senses such as sight, feel, or taste." Berry v. State, 316 So. 2d 72, 73 (Fla. 1st DCA 1975).

Again in a case predating the Betz decision, a Florida appellate court reasoned that "the odor of burning marijuana alone provided probable cause to search the defendant." State v. Chambliss, 752 So. 2d 114 (Fla. 5th DCA 2000).

Following precedent, the Betz Court swiftly confirmed the notion that an officer's detection of an odor is enough to surpass the requirement that government agents must obtain a warrant prior to searching a person and their vehicle. State v. Betz, 815 So. 2d 627 (Fla. 2002).

Okay. So it's well-established law in the Great State of Florida that the odor of marijuana is enough to justify a search of your person and vehicle. And that doesn't just have to be a search for marijuana. The smell is what gives the cop the green light to search. What he finds, whatever it is - weapons, cocaine, pills - is fair game.

Now here's the tricky part. The traffic stop is easy. A cop can make up some nonsense reason to stop you. But once you are stopped, all the officer has to do is claim that they smell an odor of marijuana. Maybe you smoked marijuana in your car ten minutes before, maybe a week before. Maybe you've never smoked marijuana in your car. It doesn't make a difference. The cop's word is the evidence. You can't really prove or disprove a smell. Even if they don't smell a thing - cops have been known to fib on occasion - the words "upon approaching the driver-side window I detected an odor of marijuana" are enough to justify PC in their report.

If the car is searched and something is found, you'll be arrested (obviously). Then, how to you properly challenge the search? It's really a question of officer credibility, which, in a sense, becomes the proverbial "your word versus their word" in court.

Every American enjoys the right to be free of unlawful searches and seizures conducted by the government. While courts have carved out numerous exceptions to the warrant requirement as it pertains to searches of vehicles (you have significantly more constitutional protections inside of your home) the limited privacy you do enjoy in your car is quickly deteriorating. With urban sprawl placing us miles away from our schools and jobs, it's not uncommon to spend two, maybe three hours a day commuting.

Permitting a search of your person and of your vehicle, including a closed, locked trunk, because a police officer claims to detect an odor is as intrusive as permitting a search of your home based on the same premise.

Until Florida courts firmly state that officers need more than just a mere odor to pull you out of your cart, understand that the constitutional protections that Americans have fought and died for can be thrown away with one whiff of an officer's nose.

Eric Matheny is a criminal defense attorney representing clients in Miami-Dade County, Florida, and Broward County, Florida.