County Criminal Court: CRIMINAL LAW – Search and Seizure – evidence. Odor of marijuana coming from car permitted officer to search car and occupants. Resulting find of weapon on one of occupants was valid. Judgment and sentence affirmed. Sharp v. State, No. CRC 05-40 APANO, (Fla. 6th Cir.App.Ct. Dec. 12, 2005).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

 

EVERETT SHARP

 

            Appellant,

 

 

v.                                                                                                                                                                   Appeal No. CRC 05-40 APANO

     UCN522005AP000040XXXXCR

 

STATE OF FLORIDA

 

            Appellee.

______________________________/

 

 

Opinion filed ___________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Thomas Freeman

 

Jenna Finkelstein, Esq.

Assistant Public Defender

 

C. Marie King, Esq.

Assistant State Attorney

 

 

ORDER AND OPINION

 

 

            THIS MATTER is before the Court on the defendant, Everett Sharp’s, appeal from a judgment and sentence entered by the Pinellas County Court. The defendant pleaded no contest to charges of carrying a concealed weapon. He reserved his right to appeal the denial of his motion to suppress. After reviewing the briefs and record, this Court affirms the judgment and sentence.

            The police noticed the defendant speeding about 1:00 A.M. and pulled him over. Upon approaching the defendant’s vehicle, the deputy smelled the strong odor of marijuana coming from the vehicle. At that point the police searched both the vehicle and the occupants. During the search of the defendant, the deputy noticed a gold pen-shaped object above the defendant’s left ear. Knowing from past experience and training that pen-shaped objects have been used to hide weapons or as drug paraphernalia, the deputy seized the object and searched it. Upon inspection of the pen-shaped object, the deputy discovered it concealed a knife blade of approximately two-and-a- half inches. The defendant was arrested and charged with carrying a concealed weapon. He argued in his motion to suppress that the deputy should not have seized and searched the pen-shaped object because the deputy had no valid reason to take what was, by all appearances, just a pen. The trial court denied the motion.

The defendant is appealing the denial of his motion to suppress. The standard of review for the denial of this motion to suppress is de novo. Harris v. State, 761 So.2d 1186 (Fla. 4th DCA 2000).

            The defendant’s argument is misplaced. The argument presented in the appeal, and the cases cited in support of the argument, address the scope of a protective pat-down search. That is not, however, the type of search that was being conducted in this case. Once the deputy smelled the strong odor of marijuana coming from the vehicle, he then had probable cause to conduct a full search of both the vehicle and the occupants. See State v. Betz, 815 So.2d 627 (Fla. 2002).The search conducted was proper. Therefore, the trial court was correct to deny the defendant’s motion to dismiss.[1]

            IT IS THEREFORE ORDERED that the judgment and sentence are affirmed.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida

 

this ____ day of December, 2005.

 

                                                                                    ________________________

                                                                                                Nancy Moate Ley

                                                                                                Circuit Judge

 

 

 

                                                                                    ___________________________

                                                                                                R. Timothy Peters

                                                                                                Circuit Judge

 

 

 

                                                                                    ___________________________

                                                                                                John A. Schaefer

                                                                                                Circuit Judge

 

cc:        State Attorney

 

            Public Defender

 

            Judge Freeman


[1] Although the defendant complains that the trial court erred in considering certain physical attributes of both the defendant and the weapon, that issue is not relevant to the disposition of this appeal.