FLORIDA COP WHO LIED ABOUT SMELLING POT TO SEARCH VEHICLE SHOULD BE PROSECUTED & PUNISHED

Gloating officer with a bag of marijuana looks like he might enjoy using the smell of pot to gain entry to a home or vehicle with a search warrant in Tampa Bay, Florida.

Pinellas Circuit Judge Andrews recently found that a nosey police officer’s testimony was too incredible to be believed when the officer said he could smell marijuana in a vehicle he wanted to search for drugs. As often happens in Florida although the vehicle did have cocaine when searched without a warrant no marijuana was found. Officers in Florida are taught to use the smell of marijuana as a pretext to search vehicles without taking the time, paperwork or probable cause for a proper search warrant.


In his written opinion the judge noted that “… it stretches the limits of credulity for this court to believe that the search of the defendant’s vehicle was based upon the odor of marijuana.” What then, one wonders, was the search based on and why did officers choose that particular vehicle to stop?

Of the many St. Petersburg Police officers at the scene of the pulled over SUV only one testified that he could smell marijuana albeit mixed with vanilla air freshener to justify the search. Clearly when other officers could not readily obtain a search warrant, this officer decided that breaking the law justified an unlawful search. And let’s not mince words – the officer did break the law. First, the police officer committed at least a trespass and possibly an armed burglary of the vehicle since he had neither a search warrant nor permission to enter the vehicle. Second, the officer while testifying that he smelled marijuana may have committed the crime of perjury if he knowingly lied under oath during the Motion to Suppress evidence.

This manufacturing of evidence has been a recurring problem with Tampa Bay police officers. The only way for it to end is not only for heroic judges to throw out cases based on lies, but for the police departments to punish those who do it. 

I had a case in the Middle District Court in Tampa in which the initial stop was based on the very strong smell of marijuana. Yet when the trunk was opened without a search warrant there was no marijuana at all only a large quantity of methamphetamine. Despite suggestions from the government agents that marijuana must recently have been in the drunk, but offloaded just before the stop, the more reasonable likelihood is that the agents simply were not being honest.

Each defense lawyer in Pinellas County, Florida should be on the look out for any cases involving this officer. All of his pending cases should be reexamined by the state attorney’s office to determine if the factual basis for criminal charges is corrupt. Further, every plea and every conviction involving his work should be investigated. If it is found after an investigation that the officer knowingly lied to the Judge or entered the vehicle inappropriately then St. Petersburg Police Department should not only fire the officer, but arrest him for perjury, trespass or armed burglary. 

THE FIVE BEST EFFECTIVE WAYS TO HAVE CRIMINAL CHARGES DISMISSED OR REDUCED IN FLORIDA

Criminal lawyers are often asked a simple question that has a complex answer: what are the best ways to have a criminal case dismissed? 

Here are the best five ways to achieve a dismissal of criminal charges in Florida:

The Judge's Gavel for dismissal of criminal charges in Florida criminal defense cases in Tampa Bay.

1. Persuading prosecutors not to file charges.
2. Persuading the Judge that the charges are insufficient legally.
3  Persuading the Judge that essential evidence should be suppressed.
4. Completing the Pretrial Intervention Program or successfully completing specific crime programs such as those run for Drug Intervention or Domestic Violence.
5. Persuading a Jury in trial that the Defendant is Not Guilty.

In Tampa Bay, Florida effective defense lawyers will first do everything possible to persuade prosecutors not to file a criminal case even when there’s been an arrest. Since prosecutors will later have to either try the case or persuade the Defendant to plead guilty, it’s vitally important for the defense to initiate an effective early initial conversation with prosecutors and their supervisors to secure a decision not to file the case by establishing problems with evidence, witnesses or legal reasoning.

Second, a Motion to Dismiss the case should be granted by the Judge in a case where it can be established that the undisputed facts do not constitute a crime. If the prosecutor believes that the facts support the filed charge, a traverse can be filed which will block the Motion to Dismiss. The Judge may set a hearing to determine what the essential facts actual are to ascertain whether the facts should lead to the case being dismissed. It’s also possible for cases to be dismissed for other procedural reasons such as far too much time between the time of indictment and arrest.

Third, a Motion to Suppress evidence may be filed to literally throw out or suppress unlawfully obtained or seized evidence which may result in the dismissal of the charges if the prosecution finds it can no longer successfully move forward with the case. For example, if a search was conducted without permission and without probable cause the Judge may suppress evidence. Though Motions to Suppress are rarely granted, it is often devastating to the prosecution when they are. Further, the mere filing of the Motion may bring benefits by prompting further factual discovery and divergent witness testimony.

Fourth, a defendant with no criminal record charged with a nonviolent crime may under certain conditions to enter a Pretrial Intervention Program upon the completion of which the case will be dismissed. The program entails a period of something similar to probation for six months to a year depending on whether the charge was a misdemeanor or felony. Although in Florida this program is under the supervision of the States Attorney’s Office, the prosecutors will ask the presiding Judge to dismiss criminal charges against those who successfully complete the program. There are also similar special programs for select crimes such as drug crimes or domestic battery charges as well.

Finally, to end a criminal case with success when all other options are unavailable, a Clearwater criminal defense attorney must be capable of establishing to a jury that no crime was committed by being willing to go to trial.

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?