State v. J.J., a child , 143 So. 3d 1050 ( 2014 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
STATE OF FLORIDA,
Appellant,
v.
J.J., a child,
Appellee.
No. 4D13-4220
[July 23, 2014]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael Orlando, Judge; L.T. Case No. 13-004818-DL.
Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney,
Sr. Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Amy Lora Rabinowitz,
Assistant Public Defender, West Palm Beach, for appellee.
PER CURIAM.
We reverse an order suppressing evidence because the arresting
officer’s detection of the odor of marijuana on appellant’s person generated
probable cause to arrest and search.
The arresting officer observed a juvenile roll “either a cannabis filled
cigar or a tobacco filled cigar.” The cigar was then passed around a small
group, including appellant who “handle[d]” it. The officer confronted the
group and smelled the “very pungent” smell of cannabis emanating from
the group, but especially from appellant. After appellant responded in a
“disrespectful” and “confrontational manner,” the officer performed a pat
down search on appellant for her “safety and [that of] the other officers on
the scene.” During this search, the officer felt a “large bulge,” which she
believed to be a quantity of cannabis.
The trial court granted appellant’s motion to suppress, rejecting the
State’s theory of a search incident to arrest because the search preceded
the arrest.
The smell of marijuana on appellant’s person, combined with his
handling of the cigar, provided the officer sufficient probable cause to
effectuate a search incident to arrest. A search incident to a lawful arrest
is authorized “contemporaneous with or prior to the actual arrest so long
as probable cause for the arrest existed at the time of the search.” D.H. v.
State, 121 So. 3d 76, 80 (Fla. 3d DCA 2013) (citing Jenkins v. State, 978
So. 2d 116, 126 (Fla. 2008)) (emphasis added). Even if an officer
articulates “a subjective intent to search for officer safety,” that will “not
change the fact that the smell of marijuana [may] provide[ ] an objectively
reasonable basis for the search.” State v. Jennings, 968 So. 2d 694, 696
(Fla. 4th DCA 2007).
“The question of probable cause is viewed from the perspective of a
police officer with specialized training and takes into account the ‘factual
and practical considerations of everyday life on which reasonable and
prudent [persons], not legal technicians, act.’” Chavez v. State, 832 So. 2d
730, 747 (Fla. 2002) (quoting Walker v. State, 707 So. 2d 300, 312 (Fla.
1997)). The inquiry focuses on whether “‘the totality of the facts and
circumstances within [the] officer’s knowledge sufficiently warrant a
reasonable person to believe that, more likely than not, a crime has been
committed.’” Santiago v. State, 84 So. 3d 455, 459 (Fla. 4th DCA 2012)
(quoting League v. State, 778 So. 2d 1086, 1087 (Fla. 4th DCA 2001)).
The Marijuana Odor
A police officer “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.
T.T., 594 So. 2d 839, 840 (Fla. 5th DCA 1992) (citations omitted); see also
State v. Reeves, 488 So. 2d 670, 670 (Fla. 4th DCA 1986) (“[T]he remaining
fact that the officer smelled the odor of burning marijuana coming from
the vehicle was sufficient to constitute probable cause.” (citations
omitted)); State v. Wells, 516 So. 2d 74, 75 (Fla. 5th DCA 1987). However,
where the person to be searched is part of a group, the odor must be
individualized. See Robinson v. State, 976 So. 2d 1229, 1233 (Fla. 2d DCA
2008). “The mere scent of marijuana coming from a group of individuals
does not by itself give an officer probable cause to arrest and search any
particular individual in the group.” D.H., 121 So. 3d at 82; see also Ybarra
v. Illinois, 444 U.S. 85, 91 (1979) (“[A] person’s mere propinquity to others
independently suspected of criminal activity does not, without more, give
rise to probable cause to search that person.”).
An instructive example of this rule was presented in Green v. State, 831
So. 2d 1243 (Fla. 2d DCA 2002). There, officers noted “a cloud of
[marijuana] smoke” lingering around four individuals—one being the
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defendant—while they were standing outside of an apartment building. Id.
at 1244. Although officers observed other group members smoke a
marijuana cigarette and discard a plastic baggie containing marijuana,
they did not see the defendant “smoke or discard anything; he simply stood
by the wall.” Id. Absent evidence tying the marijuana smell to the
defendant, the Second District reversed the denial of the defendant’s
motion to suppress, finding the defendant “did and said nothing that gave
the officers probable cause to believe that [he himself] possessed illegal
drugs.” Id. at 1245; see also Robinson, 976 So. 2d at 1233 (“The fact that
[the defendant] was standing with a group of men surrounded by the odor
of burned marijuana was insufficient to supply more than a ‘mere
suspicion’ that [the defendant] was in possession of marijuana.”); D.H.,
121 So. 3d at 83 (“Because the only facts justifying the search in this
instance were the general smell of marijuana in the area and the sight of
a puff of smoke lingering in the air around the group, there was insufficient
justification for the search . . . . ”).
In deciding Green, the Second District distinguished State v.
Hernandez, 706 So. 2d 66 (Fla. 2d DCA 1998), a case factually similar to
this one. In Hernandez, officers detected a “strong odor of marijuana
emanating from [a] cluster of people,” which included the defendant. Id.
at 66. After the defendant walked away and separated himself from the
group, officers caught up to him and “again noticed the odor of marijuana.”
Id. In finding the defendant’s suppression motion should have been
denied, the Second District held that “[t]he odor 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.” Id. at 67. In Green, however, the Second District narrowed this
generalized holding, noting that the crucial distinction in Hernandez was
that the defendant continued to smell of marijuana even after he separated
himself from the group. 831 So. 2d at 1245; see also A.T. v. State, 93 So.
3d 1159, 1161 n.1 (Fla. 4th DCA 2012) (recognizing that, through Green,
the Second District “seems to have narrowed its Hernandez holding”).
Here, the arresting officer testified that she could “smell[ ] marijuana
coming directly from [appellant].” This nasal observation gave rise to
probable cause to arrest appellant and search him for contraband.
Reversed.
GROSS, GERBER and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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