A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Monday, August 25, 2008

I Smell Marijuana!

Ah, the smell of marijuana! (Criminal defense lawyers are already laughing at this post, some prosecutors too.)

The smell of marijuana opens many doors to the life of law enforcement. Smell marijuana and open comes doors of homes, stopped are countless vehicles that "smell" of that prohibited substance, and searched are "persons" who upon them have that "smell."

So today went my motion to suppress a traffic stop. Arrest affidavit was pretty simple - my hero is observed with what appeared to be a marijuana cigarette in hand, is seen "inhaling" from it, and then his car is stopped. After the stop, officer smells marijuana and arrests my client, seizing the additional marijuana in the car.

Problem is that's not proper under the Fourth Amendment and applicable case law. Smell of marijuana has to come BEFORE the stop.

Not a problem. Put the officer of 8 whole months on the stand, and today, he says he smelled the marijuana BEFORE the stop. Why wasn't that in his detailed arrest affidavit that he testified included "exactly what happened in the order it happened?"

"I forgot to put it in there." (A gasp is heard from the back of the courtroom.)

During a small break in the hearing I leaned over and asked the prosecutor "you think he's being honest?"

Answer: "That's what he said happened."

Motion denied. Judge had no issue with testimony.

Public defender seen shaking her head.

Another day......

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com


  1. Of course, this situation is ripe for cross examination questions. How exactly did the defendant hold the smoking ember that caused the police to be certain it was marijuana? Can you tell by the way a person smokes that they are smoking marijuana? What does marijuana smell like? Can you tell when something was smoke by the odor alone? Isn't it true that many vehicles smell like marijuana even though no one has recently smoke marijuana in the vehicle? What direction was the wind blowing? How far from the vehicle were you? If the weather report that says the wind was blowing from east to west or south to north would you disagree with it? Are you trained to write accurate and complete reports? Do you sign your reports under penalty of law if they are not correct? What does it mean to you when you sign a report? Have you ever been disciplined for filing a report that was not correct? Has you co-worker the prosecutor ever prosecuted anyone in your department for false reports? Isn't it true that you being prosecuted by your co-worker the prosecutor for filing a false report is about as likely as being struck by lighting? I have blogged away on report-i-lying on http://www.oklahomacriminaldefense.blogspot.com
    Glen R. Graham, Tulsa Criminal Lawyer

  2. I'm trying to guard myself now against this type of thing happening later; namely reason and logic falling on deaf ears in the courtroom.

    Care to give any hints on how you handle it? :)

  3. meditation is good for come across these kind of problems.
    always doing meditation for a while.

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