Doesn't pass the smell test E-mail
Written by Mark Nichols   

In what could turn out be a significant trend, a Florida judge has thrown out a criminal case based on his skepticism that a police officer can smell marijuana in another vehicle from a moving patrol car. Cops who attempt to make arrests or question suspects after saying they smelled marijuana while driving inside their patrol cars may find it an increasingly tough sell in court.

Circuit Judge Maryann Boehm said that it “defies belief” that an officer could smell marijuana emanating from another moving car while driving nearby in a cruiser.

Sarasota attorney Liane McCurry, in a recent court filing, challenged a Sarasota Police officer's claim that he smelled a small bag of marijuana that Glendon Dewayne Cokley had concealed in his sock as their two cars passed at 35 mph earlier this year.

The officers told Cokley that they “smelled marijuana when they were driving their patrol vehicle.”

Because of the smell, the officers said they had a right to search the car. Cokley never gave his permission or consent.

“I thought it was preposterous,” McCurry said. “I thought it was simply impossible for a law enforcement officer to say they smelled marijuana in a moving vehicle, particularly with such a small amount in his sock.”

During the court hearing, the officers testified that their supervisors were aware of and condoned the practice.

“If didn't have such an impact on someone's Fourth Amendment rights and such an impact on the community, it would almost be funny,” McCurry said. “But it's not funny because of what's happened to people as a result.”

Judge Boehm granted McCurry's motion and threw out all the evidence.

“In this case, it defies belief that someone could smell non-burning marijuana stuffed in someone's sock, in a baggie,” the judge said during the hearing. “It defies belief, and I do find that there was no justification in stopping him. The marijuana was in his sock and not being smoked.”

McCurry said that Boehm's ruling can now be used by defense attorneys to challenge evidence in cases where moving cars are stopped by police because of the reported odor of marijuana.

The dismissal of Cokley's case came before a decision by prosecutors this week to drop charges against Joseph McNeal of Sarasota in a case with similar circumstances.

McNeal was stopped by deputies in May and had his car searched several times over a period of hours after an officer said he smelled unburned marijuana in McNeal's car while following him in traffic.

The issue of how readily marijuana can be smelled by officers arose in Pinellas County recently as part of a wide-ranging investigation into the behavior of several deputies working on drug cases.

Three deputies resigned this summer after it was revealed they obtained probable cause to search suspected pot grow houses by testifying they could smell the drug from the street.

But defense attorneys alleged that the deputies had instead targeted possible suspects by wearing costumes to gain access to properties or trespassing in backyards, peering over fences without a warrant, and by staking out customers of a retail store.

Numerous drug cases involving those deputies are at risk of being dropped after an internal affairs inquiry confirmed many of the defense attorneys’ claims.

Tampa Attorney Jason Sammis litigated one of the cases. “Police using the smell of marijuana to get probable cause is nothing new,” Sammis said. “The law is that if they say they smelled marijuana, they get probable cause.”

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