In Florida, where marijuana remains illegal for now, the odor of marijuana is a fairly common basis that police use to further investigate or search a suspect. It is also a basis that is often used to conduct a DUI investigation and make DUI arrests. The odor of marijuana obviously gives police officers reason to believe that marijuana is present. Under some circumstances, the police can use that information to search items or people. However, it is not a blanket excuse to conduct a search or “pat down” in every situation.
In a possession of marijuana case near Jacksonville, Florida, the police received a tip that certain individuals were involved in drug activity at a warehouse. The police responded and saw several individuals at the warehouse. The police officer indicated he smelled a strong odor of marijuana coming from the group. However, the police officer did not see any marijuana and did not see anyone smoking anything. Based on the odor of marijuana, the police officer asked one of the individuals to come forward. The suspect approached the police officer. This led to a pat down of the suspect and ultimately a search during which the police officer found marijuana. The suspect was arrested for possession of marijuana.
The criminal defense lawyer filed a motion to suppress the evidence of the marijuana arguing that the police officer illegally searched the defendant. The appellate court agreed. A general odor of marijuana coming from a group of people was not sufficient evidence to pat down one of the individuals or search him. The police officer could have investigated with questions or requests for consent to search but was not yet legally authorized to pat down or search anyone without more specific evidence as to who was actually smoking the marijuana or had marijuana in his possession, if anyone. Because the police officer went straight to a pat down and then a search without trying to get more specific evidence to identify the source of the odor, the marijuana evidence was suppressed and the possession of marijuana charge was later dismissed.