A motion to suppress is a legal argument presented by the defense to suppress or limit evidence in a criminal case. Evidence that is sought to be suppressed can consist of physical evidence (drugs or paraphernalia), statements of witnesses, identifications of suspects, and confessions.
Florida Rules of Criminal Procedure 3.190(g) provides that a motion to suppress is appropriate where: A defendant aggrieved by an unlawful search and seizure may move to suppress anything so obtained for use as evidence because:
- the property was illegally seized without a warrant;
- the warrant is insufficient on its face;
- the property seized is not the property described in the warrant;
- there was no probable cause for believing the existence of the grounds on which the warrant was issued; or
- the warrant was illegally executed.
Knowing the law and the changes in the law is critical for an aggressive defense. At Flaherty & Merrifield we analyze each case to determine if there exists a reason to suppress evidence against our client. In-depth analysis for suppression issues requires exhaustive review of police statements, probable cause affidavits, bodycam footage, and police procedure used during the encounter or arrest. In addition to pitfalls in law enforcement’s investigation, we review witness statements, witness identification, and any interaction law enforcement may have had while investigating the case.
Drugs cases, specifically marijuana cases, generally include multiple officers, K9 units, multiple possible defendants, and scientific testing. While law enforcement is investigating a marijuana arrest, all of these procedures and complications are evolving in the background.
Some common suppression issues include:
- Suppression based on a faulty or insufficient warrant
- Suppression based on an illegal stop or detention
- Suppression of an illegally obtained confession
If suppression is successful it means the State cannot use the illegally obtained evidence against you. It also means that the State will have difficulty proving their case beyond a reasonable doubt. This usually results in a dismissal of the charges.
Now that medical marijuana is legal in Florida, can the police search me based on odor of marijuana?
Probable Cause for an Arrest: Odor is NOT Enough
Probable Cause is required for a law enforcement officer to arrest a person without a valid warrant. Probable cause requires law enforcement to have a reasonable basis to believe that a crime is about to be, was committed, or that evidence of the crime exists. This mechanism has consistently been used by police to bypass the warrant protections provided by the U.S. Constitution.
Before medical marijuana in Florida, law enforcement could use “smell” as probable cause to investigate and arrest a person. Anything that was found on that person as a result of the investigation based on odor could be used against them in a criminal action. Essentially odor was enough for law enforcement to accuse, search, and arrest a person. That law has now changed thanks to medical marijuana laws.
The law in Florida no longer has a bright-line test for “odor.” Odor can still play a role in developing probable cause, but the test under the current law is odor plus another factor. This means that if an officer smells marijuana, that is not enough, the officer must observe other cues based on his training and experience to develop probable cause and arrest someone without a warrant. The problem with this change in the law is understanding what “odor plus” means. The plus portion of the test allows officers to use a subjective standard, based on their belief and the circumstances, to determine if probable cause exists. With there being no one-size-fits-all for probable cause where there is marijuana smell, law enforcement can creatively find another reason to justify probable cause.
What is “odor plus?”
The odor plus standard remains unsettled, however, law enforcement agencies across the State are working to establish factors that can constitute the plus portion of the test. Some factors that could provide law enforcement with probable cause based on odor plus are listed below:
- Information or intelligence regarding illicit activity prior to the stop
- Prior criminal history for narcotics
- Observations (ex: drug transaction prior to the stop)
- Conflicting/implausible statements
- Nervousness: Sweating when it is not hot; Shaking or trembling hands; Avoiding eye contact
- Furtive movements
- Discarding, destroying, or trying to hide a substance
- A large amount of currency
- Currency in rubber-banded “quick count bundles”
- Masking agents such as fabric softener, air fresheners, or coffee grinds
- Firearms or other weapons
- Drug paraphernalia
- Signs of impairment of a driver (such as bloodshot, watery eyes or slurred speech)
Due to the changes in the law regarding odor, it is imperative to have an aggressive criminal defense attorney who understands the subjectivity of the officer’s probable cause determination and who is not scared of trial or making the officer provide his basis for probable cause.
If we can’t get evidence suppressed, what other defenses are there to a drug case in Fort Walton Beach?
While we always look to win our cases outright, sometimes law enforcement did their job within its scope and did not violate a person’s rights or the letter of the law. In these instances, Pretrial Diversion is a good option to resolve drug charges in Fort Walton Beach.
Pretrial Diversion is a program available for first time offenders. The benefit to this program is that if you successfully complete Pretrial Diversion, your case will be dismissed. Unfortunately, referrals to the Pretrial Diversion program are not just handed out freely by the State, which is why we take an aggressive approach from the beginning to fight for a dismissal or a referral to the program. By taking this approach, we have been gotten hundreds of cases dismissed for clients charged with misdemeanor and felony drug possession.
If you complete the requirements specific to your case, and have no violations during the term, your case will be completely dismissed, and we can then discuss expunging your arrest record. To learn more about record expungement click here.
If you have been charged with drug possession in Fort Walton Beach, call Flaherty & Merrifield at (850) 243-6097.