SPECIAL LEGAL BULLETIN No. 3
May 7, 2002
SUBJECT: Automobile Exception to the 4^th Amendment’s Warrant Requirement.

Question: Does the odor of burnt marijuana alone justify the search of a vehicle, including the trunk?

Answer: Based upon the United States Supreme Court, the Florida Supreme Court, and the opinion of the Fifth District Court of Appeals, the odor of burnt marijuana alone justifies a search of the interior of the vehicle, but not automatically of the trunk. A totality of the circumstances approach should be used to consider any other factors present which might justify a search of the trunk.

A search of the trunk is justified if the officer can set forth any other actions, observations or circumstances in addition to the burnt marijuana, which might justify continuing the search into the trunk. This may include fresh marijuana found on the person or in the vehicle, a large amount of cash on the person or in the vehicle, furtive movements by the subject to distract the officer away from the trunk, etc. See, Betz v. State, 793 So.2d 976 (Fla. 2^nd DCA 2001), rev’d, State v. Betz, No. SC01-319 (Fla. April 4, 2002); State v. Jarrett, 530 So.2d 1089 (Fla. 5^th DCA 1988); U.S. v. Ross, 456 U.S. 798, (1982).

In the Florida Supreme Court’s recent ruling in State v. Betz, No. SC01-319 (Fla. April 4, 2002), the Court relied on a previous U.S. Supreme Court case (United States v. Ross, 456 U.S. 798 (1982)) in offering guidance, "it is the extent of the law enforcement officer’s probable cause in each particular situation that defines the permissible magnitude of the warrantless search."

Previously, the 2^nd District Court of Appeal (in Betz) had determined that probable cause to believe the passenger compartment of the vehicle contained contraband did not justify a search of the trunk or of the containers within it. However, the 5^th District Court of Appeal (in Jarrett) was of the opinion that the odor of burnt marijuana alone provided police officers probable cause to search the entire automobile, including the trunk. It is important to note that in Jarrett, in addition to smelling the odor of burnt marijuana emanating from the car, the officer also seized a bag of cannabis from the passenger compartment. The Jarrett court relied heavily on the U.S. Supreme Court’s decision in U.S. v. Ross, 456 U.S. 798 (1982), which used a ‘totality of the circumstances’ approach.

The U.S. Supreme Court in Ross stated that, "the scope of a warrantless search based on probable cause is no narrower—and no broader—than the scope of a search authorized by a warrant supported by probable cause." Ross at 823.

The U.S. Supreme Court has also addressed an additional scenario in California v. Acevedo, 500 U.S. 565 (1991). In that situation, police officers suspected that a certain compartment or area of the vehicle contained contraband. Under that scenario, the Court held that, "probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab." The Acevedo case did not speak to the more common situation where the police officer has probable cause to believe the car contains contraband, but does not know precisely where it is secreted within the vehicle. This is precisely what the Betz Court wanted to address, to clear up conflict between the 2^nd and 5^th district courts of appeal. The Court in Betz found Acevedo to be inapplicable, and instead relied on the U.S. Supreme Court’s broad statements in the Ross opinion in guiding its decision. ("If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of that vehicle and its contents that may conceal the object of the search." 456 U.S. at 825)

The Betz Court specifically noted the additional facts besides the odor of marijuana that gave probable cause to search beyond the passenger compartment. In addition to the marijuana odor, the officer testified that Betz attempted to draw him away from the vehicle by exiting the vehicle and approaching him before the officer could reach the rear of Betz’s auto. Betz also became extremely nervous and jittery during his pre-search interaction with the officer. When the officer attempted to pat down Betz, he pushed off the car twice during the frisk, acting in an extraordinarily suspicious manner. During the frisk, the officer found and confiscated a storage bag containing marijuana. The Betz Court stated, "considering the totality of the circumstances presented to police here, we conclude that Officer Harold possessed probable cause to search the entirety of the respondent’s automobile, including the trunk."

Based on the Betz conclusion, the odor of burnt marijuana, in combination with other circumstances, leads to a law enforcement officer’s possession of probable cause to search the entirety of the vehicle. The Florida Supreme Court made it clear that there were other facts present other than the burnt marijuana, and that the officer should consider the totality of the circumstances. In most cases where there is the odor of burnt marijuana, the trooper should be especially observant and cognizant of any other factors present which might justify a search of the trunk, such as those set forth in the foregoing cases. The Florida Supreme Court notes that there is no nationwide consensus on the issue presented.

Approved by Enoch J. Whitney, General Counsel; Edited by Laurie Beth Woodham, Assistant General Counsel.