NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
STATE OF
Appellant,
v. Appeal No. CRC 06-28 APANO
UCN522006AP00028XXXXCR
NOAH McNEIL GOING
Appellee.
____________________________/
Opinion filed __________________.
Appeal from a decision of the
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 (
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 (
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.