Over the weekend, a Bartow high school teacher was arrested for possession of marijuana and paraphernalia (a grinder). WFLA channel 8 is reporting that Polk County Sheriff deputies allegedly went to the teacher's house in response to a tip that the teacher was in possession of the marijuana. Once the deputies arrived, they alleged smelled the odor of marijuana and searched the house according to the news report.
Because the arrest just occurred, I was not able to get a copy of the actual police report, but there appears to be some issues with this search and whether it was lawful. A search can be conducted if someone consents to the search. You have a constitutional right to NOT give consent to search to law enforcement. If no consent was given in this case, law enforcement needs some other legal reason to be able to search the home.
Normally, the odor of marijuana will give an officer probable cause to search a person or their vehicle under Florida case law. However, a person's home is subject to greater protection that a person or vehicle out in public. To search a person's home, law enforcement must obtain a warrant to search unless there is an exception to the warrant requirement. These exceptions are listed in the statute. The exception most likely to be relied upon by the deputies in this case is exigent circumstances meaning that if the deputies did not search immediately, there was a possibility the evidence (cannabis) could be destroyed (flush down the toilet). However, just because that may be possible, does not automatically qualify a situation as "exigent circumstances". This is because the police may be required to secure the premises and the individual while the police secure a warrant.
Without seeing the police report, it is difficult to tell whether this teacher's constitutional rights were violated, but it appears there may be a Motion to Suppress that could be filed in this case requesting the court throw out the evidence of the search because the deputies did not obtain a warrant prior to the search making it an illegal/unconstitutional search. If the search was illegal, the motion would be granted, the evidence seized thrown out of court, and the case dismissed.
If you have been arrested for a drug charge or any other criminal offense, call a member of the Florida and National Association of Criminal Defense Lawyers to fight for you in court!
Polk County Criminal Defense Lawyer Thomas C. Grajek - 863-838-5549 cell