STATE OF FLORIDA, APPELLANT,
v.
T.T., A CHILD, APPELLEE
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The state appeals a suppression order that excluded evidence of marijuana found on a minor during a warrantless search at a skating rink. The court holds that a trained officer's detection of the distinctive odor of burned marijuana provides probable cause to justify a search without a warrant, and reverses the suppression order.
A trained officer who is familiar with and can recognize the distinctive odor of burned marijuana has probable cause based on smell alone to search a person for contraband, and such probable cause authorizes a warrantless arrest and search.
[1] A trained law enforcement officer's detection of the distinctive and strong odor of burned marijuana emanating from a person provides probable cause to search that person…
[2] Probable cause to search a person based on the odor of contraband may be established solely by the sense of smell.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A person who is trained to recognize the odor of marijuana and who is familiar with it and can recognize it has probable cause, based on the smell alone, to search a person or a vehicle for contraband.”
Establishes the core holding that trained officer detection of marijuana odor provides probable cause for search
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Join FLexlaw to unlock all legal intelligenceDeputy Bagley, working off-duty as a security guard at a skating rink at 11:00 p.m., detected a very strong odor of burned cannabis emanating from T.T…
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[*840] W. SHARP, Judge.
The state appeals from an order suppressing evidence of a marijuana cigarette found in T.T.’s right front jeans pocket. The court ruled it was dispositive of a delinquency petition filed against T.T. based on possession of marijuana. We reverse.
At the hearing on T.T.’s motion to suppress, Deputy Bagley testified that he was working off-duty as a security guard at the Funtastic Skating Center in Orange County, Florida, when he came into contact with T.T. Bagley had positioned himself at one side of a three-foot doorway, opposite an attendant who was taking tickets from the patrons entering the Center. It was 11:00 p.m. when T.T. passed through the doorway by himself and walked between the attendant and Bagley.
Bagley’s attention was immediately focused on T.T. because he smelled a very strong odor of smoked cannabis emanating from T.T. Bagley identified himself to T.T. as a law enforcement officer. Bagley took T.T. to a nearby office and searched his pockets. He found a partly-smoked, rolled cigarette, recognized it as likely being cannabis, and verified that it was cannabis after doing a presumptive test on it. He then arrested T.T. for having committed a first degree misdemeanor in his presence.1
Bagley also testified that he had worked with the Orange County Sheriff’s Department for five years, had been trained in narcotics, and had made numerous drug and cannabis-related arrests. Part of his training was the detection of cannabis through its distinctive smell. He testified he had smelled the burned residue of cannabis many times, he was familiar with it, and could easily recognize its smell. The odor coming from T.T. was very strong.
Based exclusively on the odor of burned marijuana coming from T.T., Bagley testified that he had probable cause to believe that T.T. had contraband on his person. Bagley said he could not see any bulges in T.T.’s clothing, nor had he observed T.T. smoking a cigarette outside or inside the Center (smoking was not permitted inside the Center). He had no grounds to believe T.T. was armed or carrying a weapon and T.T. did not give his consent to the search.
The issue in this case is whether Bagley had probable cause to believe T.T. was in possession of cannabis based solely on the very strong smell of burned marijuana residue, which Bagley detected coming from T.T., as he walked past Bagley at the entrance doorway.2 We think he did. The sense of smell is perhaps not as keen in humankind as in other animals, but some odors such as burned cannabis are very strong and very distinctive. A person who is trained to recognize the odor of marijuana and who is familiar with it and can recognize it has probable cause, based on the smell alone, to search a person or a vehicle for contraband. State v. Jarrett, 530 So. 2d 1089 (Fla. 5th DCA 1988); State v. Wells, 516 So. 2d 74 (Fla. 5th DCA 1987); State v. Reeves, 488 So. 2d 670 (Fla. 4th DCA 1986). As this court noted in Wells:
The mere possession of marijuana is illegal. When a police officer who knows the smell of burning marijuana detects that odor emanating from a vehicle, or from a person who has recently exited a vehicle, he has probable cause to believe a crime has been committed and that such person has committed it. This probable cause authorizes the arrest of such person and a warrantless search, either before or after the arrest, of the passenger compartment of the vehicle, and closed containers therein, for evidence of the crime.
516 So. 2d at 75.
Accordingly, we reverse the suppression order and remand for further proceedings.
REVERSED and REMANDED.
HARRIS, J., concurs.
DAUKSCH, J., dissents with opinion.
. § 893.13(l)(g), Fla.Stat. (1991).
. The issue of Bagley’s credibility was not raised below or on appeal. At the suppression hearing, defense counsel apparently accepted Bag-ley’s testimony, but questioned whether the odor alone could create a reasonable suspicion sufficient to justify a search of T.T.’s clothing.
[*841] DAUKSCH, Judge,
dissenting.
I respectfully dissent.
The trial judge heard the testimony of one witness and made his ruling based upon that evidence alone. No factual findings were expressed so we are without a clue as to the basis for the ruling. It could be that the judge did not believe the witness and granted the motion on that basis. If so, then this court cannot disturb the ruling — factual determinations are solely that judge’s province. I venture to guess that all experienced trial judges sometimes do not believe some testimony and thus rule on that basis without directly saying the witness was not believed. Given that that is entirely possible here, I think we are bound to affirm.
Whether defense counsel “accepted Bag-ley’s testimony” (mentioned by the majority in footnote 2) is not the question. For this court to decide is whether the record establishes that the trial judge erred. He ruled that the evidence should be suppressed. He does not have to state his reasons or his findings. State v. Keel, 557 So. 2d 907 (Fla. 1st DCA 1990). His ruling is presumed correct. Savage v. State, 588 So. 2d 975 (Fla.1991); Bonilla v. State, 579 So. 2d 802 (Fla. 5th DCA 1991). We are bound to uphold his ruling.
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State v. Lucio Hernandez, 706 So. 2d 66 (Fla. 2d DCA 1998)…of marijuana gave the officers probable cause to believe the members of the group had marijuana in their possession and, therefore, to search each person who was present. See State v. Wynn, 628 So. 2d 848 (Fla. 2d DCA 1993). See also State v. T.T., 594 So. 2d 839 (Fla. 5th DCA 1992). Furthermore, a search incident to a lawful arrest can precede the arrest if the officer has probable cause to arrest the defendant prior to the search. See Baggett v. State, 562 So. 2d 359 (Fla. 2d DCA 1990). The officers obse…
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Blake v. State, 939 So. 2d 192 (Fla. 5th DCA 2006)…le, he has probable cause to believe a crime has been committed and that such person has committed it. Because the officer has probable cause, he or she is authorized to arrest the person and then to conduct a warrant-less search. See State v. T.T., 594 So. 2d 839 (Fla. 5th DCA 1992); State v. Jarrett, 530 So. 2d 1089 (Fla. 5th DCA 1988); State v. Wells, 516 So. 2d 74 (Fla. 5th DCA 1987); State v. Reeves, 488 So. 2d 670 (Fla. 4th DCA 1986); State v. Bennett, 481 So. 2d 971 (Fla. 5th DCA 1986). Compare Smith v…
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State v. Reed, 712 So. 2d 458 (Fla. 5th DCA 1998)…esponse to Fernandez’ query whether he had more contraband on his person — gave Fernandez probable cause to believe a crime had been committed6 and that Reed had committed it.7 REVERSED. GRIFFIN, C.J., and THOMPSON, J.,.. concur. . State v. T.T., 594 So. 2d 839 (Fla. 5th DCA 1992). . § 893.13(l)(a)l, Fla. Stat. (1997). . Harvey v. State, 653 So. 2d 1146 (Fla. 5th DCA 1995); State v. T.T., 594 So. 2d 839 (Fla. 5th DCA 1992); State v. Jarrett, 530 So. 2d 1089 (Fla. 5th DCA 1988). . State v. T.T.; State v.…1 / 2
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bonilla v. State, 579 So. 2d 802 (Fla. 5th DCA 1991)
- State v. Freddy Sims, 530 So. 2d 1089 (Fla. 4th DCA 1988)
- Hillyer v. State, 516 So. 2d 74 (Fla. 5th DCA 1987)
- State v. Wells, 516 So. 2d 74 (Fla. 5th DCA 1987)
- State v. Renwick Keel, 557 So. 2d 907 (Fla. 1st DCA 1990)
- State v. Evans, 588 So. 2d 975 (Fla. 1991)
- State v. Reeves, 488 So. 2d 670 (Fla. 4th DCA 1986)