final until disposition of timely filed motion for rehearing.
of nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Andrew L. Siegel, Judge;
L.T. Case No. 17-008132CF10A.
Moody, Attorney General, Tallahassee, and Marc B. Hernandez,
Assistant Attorney General, West Palm Beach, for appellant.
A. Maister of Frank A. Maister, P.A., Fort Lauderdale, for
State appeals the trial court's order granting Sebastion
Tigner's motion to suppress evidence. We reverse.
was charged with one count of possession of a controlled
substance, substituted cathinones, without a valid
prescription. Tigner moved to suppress the inculpatory
evidence on the grounds that it was obtained as a result of
an illegal search and seizure. The matter proceeded to a
suppression hearing where the following was established by
the testimony of the two officers involved with the stop.
day in question, the officer making the initial stop had
reason to believe that the vehicle in which Tigner was a
passenger had illegal tint because he was unable to see
inside the vehicle. When the driver of the vehicle lowered
his window, the officer smelled both burnt and fresh
marijuana emanating from inside the vehicle. A backup officer
who was in the area was immediately called and arrived within
a minute. This officer had a narcotics K-9 and a tint meter.
The tint meter confirmed the vehicle's tint was illegal.
The backup officer also smelled marijuana coming from inside
the vehicle. The five occupants of the vehicle, including
Tigner, were told to exit the vehicle so that the K-9 unit
could determine whether there were any illegal drugs in the
vehicle. Removing the occupants was done to avoid the
possibility that the K-9 might bite one of the occupants.
None of the occupants were restrained.
driver of the vehicle stated that he had smoked marijuana
earlier but that there currently was no marijuana inside the
vehicle. While the occupants were exiting the vehicle, Tigner
was instructed to leave a purple Cigarillo pouch located in
his waistband in the vehicle for officer safety. The officers
did not squeeze the pouch at that point out of concern that
it might contain a blade or something that could hurt the
narcotics inspection K-9 conducted an exterior sniff of the
vehicle and showed a change of behavior at the odor of
narcotics at the front driver side window which had been left
open, and also alerted at the front driver side door. The K-9
proceeded inside the vehicle, at which point she alerted to
the purple pouch. Upon the K-9's alert, the backup
officer searched the pouch and found a plastic baggy filled
with a white substance. The contents initially tested
positive at the scene for MDMA ecstasy, but a lab test later
indicated it was substitute cathinones. No marijuana was
found. The occupants of the vehicle were also patted down,
and no weapons or drugs were found on any of them.
conclusion of the hearing, the defense argued that requiring
Tigner to leave his pouch behind so that it would be exposed
to a drug sniff was an impermissible seizure. The State,
however, maintained that the odor of marijuana provided
officers with probable cause not just to search the vehicle,
but the occupants of the vehicle. Nevertheless, the trial
court granted the motion to suppress, finding that, based on
the Fifth District's case in McNeil v. State,
656 So.2d 1320 (Fla. 5th DCA 1995), the officers did not have
the right to search the pouch. The trial court entered its
order granting Tigner's motion to suppress. This appeal
State argues that the trial court erred in granting the
motion to suppress, asserting that as soon as the officers
detected the odor of marijuana emanating from inside the
vehicle, they had probable cause to search both the vehicle
and all of its occupants, including Tigner and his pouch.
Moreover, the fact that Tigner was prevented from removing
the pouch from the vehicle did not invalidate the search
because the officers already had probable cause to search the
pouch based on the smell of marijuana emanating from inside
the vehicle and the K-9 alerting to the exterior of the
vehicle and the pouch itself.
reviewing an order granting a motion to suppress, "[a]n
appellate court reviews factual findings to determine whether
they are supported by competent substantial evidence, and the
application of those facts to the law is reviewed de
novo." State v. Jennings, 968 So.2d 694, 696
(Fla. 4th DCA 2007).
facts of this case are similar to those in Jennings.
In that case, the State appealed an order granting a motion
to suppress evidence of cocaine found on the defendant during
a search of his person. Id. at 695. Officers had
initially stopped the vehicle in which the defendant was a
passenger for a traffic infraction and smelled marijuana upon
approaching the vehicle. Id. The driver told the
officers there was marijuana in the driver's side visor.
Id. The driver and the defendant were both ordered
out of the vehicle for officer safety due to the smell of
marijuana and also because the ...