County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Search of vehicle unjustified where there was no evidence of officer’s training or experience in identifying smell of burnt marijuana. Order granting defendant’s motion to suppress affirmed. State v. Going, No. CRC 06-28 APANO, (Fla. 6th Cir. App. Ct. May 14, 2007).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

STATE OF FLORIDA

 

            Appellant,

 

v.                                                                                 Appeal No. CRC 06-28 APANO

                                                                                    UCN522006AP00028XXXXCR

NOAH McNEIL GOING

 

            Appellee.

____________________________/

 

Opinion filed __________________.

 

Appeal from a decision of the

Pinellas County Court

Honorable Thomas B. Freeman

 

Jason Bard, Esquire

Assistant State Attorney

 

Curtis M. Crider, Esquire

Attorney for appellee

 

ORDER AND OPINION

 

            (J. Gross)

 

            THIS MATTER is before the Court on the State’s appeal from a decision of the Pinellas County Court to grant the defendant’s motion to suppress. After reviewing the briefs and record, this Court affirms the decision of the trial court.

            Approximately 12:30 A.M., a police officer received a dispatch. It said that an anonymous caller claimed there were two people parked in a red Volvo at a particular location smoking drugs. The officer arrived at the location; saw the car with two people in it, but they did not appear to be smoking. The officer approached the passenger door, which was slightly open, and smelled a “very strong odor of burnt marijuana” coming from the car. The officer then asked for consent to search the car, but was refused. Based upon the smell of burnt marijuana, the officer searched the car; he found a glass pipe that contained marijuana residue. The defendant was arrested and charged with possession of marijuana. He filed a motion to suppress, and that motion was granted by the trial court.

The State is appealing that decision, claiming that the officer had probable cause to detain and search the individuals because of the odor of burnt marijuana. The standard of review is de novo. Underwood v. State, 801 So.2d 200 (Fla. 5th DCA 2001).

            The reason why the trial court granted the motion to suppress is unclear. Neither the written order nor the transcript of the hearing sets forth a specific reason for the decision. In its answer brief, however, the defendant points out that the State failed to elicit testimony that the officer who made the stop had any training or experience in identifying the smell of burnt marijuana. The State failed to file a reply brief, thus leaving that argument unanswered.

             In the two cases cited by the State --- State v. Betz, 815 So.2d 627 (Fla. 2002) and State v. T.P., 835 So.2d 1277 (Fla. 4th DCA 2003) --- there was testimony about the officer’s training and experience in identifying the odor of burnt marijuana. That appears to be the situation in most cases. See e.g., Kimball v. State, 32 Fla. L. Weekly D618 (Fla. 1st DCA March 2, 2007); Green v. State, 831 So.2d 1243 (Fla. 2d DCA 2002). The other cases do not mention it, and none specifically deal with the issue and hold that such evidence is unnecessary.

            This Court holds that without any evidence of either the officer’s training or experience in identifying the smell of burnt marijuana, or any form of request for judicial notice that the smell of burnt marijuana is commonly known by police officers who patrol the streets, there was insufficient foundation to establish a reasonable suspicion in this case. In the case at bar, the State failed to meet its burden. Accordingly, the trial court was correct to grant the defendant’s motion to suppress. The State’s other argument --- that the tip together with the facts observed when the officer arrived on the scene gave the officer justification to conduct a search --- is not persuasive.

            IT IS THEREFORE ORDERED that the decision of the trial court is affirmed.

 

DONE AND ORDERED this _____ day of April, 2007.

 

 

                                                                        ___________________________

                                                                                    David A. Demers

                                                                                    Circuit Court Judge

 

 

 

                                                                        ____________________________

                                                                                    Raymond O. Gross

                                                                                    Circuit Court Judge

 

 

 

                                                                        _____________________________

                                                                                    Robert J. Morris, Jr.

                                                                                    Circuit Court Judge

cc:        Office of the State Attorney

 

            Honorable Thomas B. Freeman

 

                        Curtis M. Crider, Esq.