Newspaper article Sarasota Herald Tribune

Strength of Drug's Scent Is Doubted

Newspaper article Sarasota Herald Tribune

Strength of Drug's Scent Is Doubted

Article excerpt

MARIJUANA: Officers who claim smell as basis for search have tough case


Law enforcement officers who attempt to make arrests or question suspects after saying they smelled marijuana while driving inside their patrol cars may find it a tough sell in court after a local judge this month threw out such a case.

In a case reminiscent of the traffic stop initiated by Sarasota Sheriff's Deputy Dominic Fornal in May -- a case in which charges also were dropped -- 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 patrol car.

Sarasota attorney Liane McCurry, in a recent court filing, contested 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 on Central Avenue last May.

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, even though 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, McCurry said.

"If if didn't have such an impact of 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, ending the prosecution of the case.

"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. …

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