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Does the smell of marijuana warrant probable cause?

Gainesville, FL |

Me and a few friends were evicted from a condo for not having a 24 year or older person with us on the premises. When the police officer came to our door to serve the eviction, one of us opened the door. The cop claimed he smelled weed, which in all actuality he did, and proceeded to search the condo, recovering 16 grams of marijuana and 10 or so bottles of alcohol. What I would like to know is if by smelling the weed, did the cop have the right to search our condo without a warrant? The housing contract stated there must be adult supervision at all times, yet it did not mention anything about searches. He claimed the smell was sufficient for probable cause, and thus he did not need a warrant to search.

Attorney Answers 2

Posted

These issues are very fact intensive, but generally yes, the odor of marijuana constitutes probable cause for a search. You have greater 4th Amendment Protection in your house than you would in a car or on the street, but the state will likely argue exignent circumstances prevented the police from getting a warrant due to the fact that marijuana could easily be destroyed or gotten rid of during the time they were seeking the warrant. An interesting issue to consider is whether you were in constructive possession of the substance. There is alot of very favorable case law on this issue. Your lawyer should explore all of these issues thoroughly before advising you on how to best proceed.

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Posted

From what you are saying, yes, he had a right to search the condo.
Unless someone said that it was their weed, however, it's hard to prove whose it is. As the other attorney pointed out, the concept of constructive possession comes into play and may be able to help.
Talk to a local criminal defense attorney. Many, including myself, offer free consultations.

Thomas Almquist

The Law Office of Thomas Almquist
901 NW 8th Ave. Suite C-7
Gainesville, FL 32601

(352) 278-0230
thomas@almquistlaw.com
www.almquistlaw.com

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