In criminal cases, sometimes it’s the police’s word against the defendant’s. In Arias v. State, the Third District Court of Appeals explains that a cop’s testimony is likely to be considered credible unless the defense introduces conflicting evidence.
Mr. Arias was arrested and charged with trafficking in cannabis after police found that he was running a marijuana grow house. A local police detective (Det. Donnelly) got an anonymous tip concerning the suspected grow house, which he and other officers visited along with a drug-sniffing dog soon thereafter. When they neared the house, Donnelly noticed a strong smell of marijuana. Although at least one fellow officer did not notice the smell, the dog also indicated that it had been alerted to the smell of unlawful drugs. Donnelly later obtained a search warrant based on this information and a search of the home confirmed that it was being used as a grow house.
The Third District affirmed Arias’s conviction on appeal. The court began by explaining that the police engaged in an unlawful search by using the drug dog before getting a warrant. In Florida v. Jardines, the U.S. Supreme Court recently ruled that use of a drug dog to sniff outside a house without probable cause violates the Constitution’s Fourth Amendment.
Here, the court nevertheless found that there was sufficient evidence beyond the dog sniff to establish the probable cause necessary to support the search warrant. In addition to smelling the marijuana himself, Donnelly also said that he saw three cars parked in the driveway and noticed that the blinds were drawn on all of the home’s windows as well as that an A/C unit was running continuously without recycling air.
The Appeals Court rejected Arias’s argument that Donnelly did not smell the marijuana independently, but only after the police dog gave a positive alert. Donnelly testified at a hearing that he smelled the plants before the dog gave the alert, but that he did not tell the other officers because he wanted them to work independently and focus on gaining information that could be used to get a warrant. The other officers also testified that Donnelly did not tell them that he had smelled marijuana until after the dog’s positive alert.
“The officers’ testimony was consistent because there is no way of knowing when Detective Donnelly smelled the live marijuana other than his testimony as to that fact,” the Third District concluded. Given that there was no conflicting evidence, the Court said it must defer to the trial court’s decision that Donnelly’s testimony was credible. As a result, the court affirmed the conviction.
Search and seizure issues and the question of probable cause are often at the center of a criminal drug case. It is important to understand these issues, as well as your rights and available defenses, before proceeding to trial. If you have been charged with a crime in Florida, contact the South Florida criminal attorneys at Anidjar & Levine. With offices in Ft. Lauderdale, we serve clients throughout the region, including in Hialeah, Pompano Beach and Boca Raton.
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