State v. Jennings
| Decision Date | 21 November 2007 |
| Docket Number | No. 4D06-3618.,4D06-3618. |
| Citation | 968 So.2d 694 |
| Parties | STATE of Florida, Appellant, v. John JENNINGS, Appellee. |
| Court | Florida District Court of Appeals |
Bill McCollum, Attorney General, Tallahassee, and Monique E. L'Italien, Assistant Attorney General, West Palm Beach, for appellant.
Michael B. Cohen, of Michael B. Cohen, P.A., Fort Lauderdale, for appellee.
The state appeals an order granting a motion to suppress evidence of cocaine found on appellee during a search of his person. The search occurred after officers stopped the vehicle in which appellee was riding for a traffic infraction and smelled marijuana when they approached the vehicle. Because the smell of marijuana gave the officers probable cause to search the vehicle and its occupants, we reverse.
Two Broward County deputy sheriffs stopped a vehicle for speeding and having no tag light. There were two people in the vehicle: the driver and appellee Jennings, who was in the front passenger's seat. As they approached, both officers testified that they smelled the odor of marijuana coming from the open windows of the vehicle. Both deputies testified that they had training and experience in detecting marijuana by smell.
One of the deputies asked the driver whether there was anything illegal in the vehicle, and the driver told him that there was marijuana in the driver's side visor. The deputy asked the driver to exit the vehicle for officer safety. The other officer asked Jennings to get out of the vehicle, because Jennings was very jittery, could not keep still, and was sweating profusely, as well as because of the strong odor of marijuana coming from the vehicle. Once outside, the deputy asked Jennings for consent to search, which the officer wanted to do for officer safety and to determine whether Jennings had illegal narcotics on him. Jennings did not verbally respond to the request to search, but gestured by nodding his head, lifting up his arms, and shrugging his shoulders. The search revealed a packet containing cocaine. The trial court granted the motion to dismiss, finding that based upon the totality of the circumstances the search was not one for officer safety purposes and the consent indicated by a shrug was simply an acquiescence to police authority. The state appeals.
An appellate court reviews factual findings to determine whether they are supported by competent substantial evidence, and the application of those facts to the law is reviewed de novo. State v. Manuel, 796 So.2d 602, 604 (Fla. 4th DCA 2001). Here, although there were conflicts and contradictions in the testimony, it was undisputed that the officers smelled marijuana when they approached the vehicle.
The smell of marijuana coming from an occupied vehicle provides probable cause that a violation of the narcotic laws of the state has occurred. "Probable cause exists where `the facts and circumstances within their (the officers') knowledge . . . [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." State v. Betz, 815 So.2d 627, 633 (Fla.2002) (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)) (alteration in original). Although the issue presented to the supreme court in Betz involved whether the smell of marijuana would permit a search of the trunk of the vehicle, we have applied it to permit the search of the occupants of the vehicle. See, e.g., State v. T.P., 835 So.2d 1277 (Fla. 4th DCA 2003); State v. K.V., 821 So.2d 1127, 1128 (Fla. 4th DCA 2002). Other Florida courts have come to the same conclusion. See Blake v. State, 939 So.2d 192 (Fla. 5th DCA 2006); State v. Hernandez, 706 So.2d 66 (Fla. 2d DCA 1998).
State v. Chambliss, 752 So.2d 114 (Fla. 5th DCA 2000), presents the most similar facts to this case. In Chambliss, the appellee was a passenger in a vehicle stopped because the tag did not match the car. When the officer approached the vehicle, he detected a strong odor of marijuana. The officer had all the occupants exit the vehicle. The trial court recognized that the odor of marijuana emanating from the vehicle constituted probable cause to search all occupants. Nevertheless, the trial court concluded that appellee was unlawfully detained because the arresting...
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...themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed.’ " State v. Jennings, 968 So. 2d 694, 696 (Fla. 4th DCA 2007) (alteration in original) (quoting State v. Betz, 815 So. 2d 627, 633 (Fla. 2002) ). The elements of the criminal off......
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...supported by competent substantial evidence, and the application of those facts to the law is reviewed de novo." State v. Jennings, 968 So. 2d 694, 696 (Fla. 4th DCA 2007). The facts of this case are similar to those in Jennings. In that case, the State appealed an order granting a motion t......
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