Pubdate: Thu, 06 Dec 2001
Source: Naples Daily News (FL)
Copyright: 2001 Naples Daily News.
Contact:  http://www.naplesnews.com/
Details: http://www.mapinc.org/media/284
Author: Jackie Hallifax

HIGH COURT HEARS ARGUMENTS OVER TRUNK SEARCH

TALLAHASSEE - Almost five years ago, a Clearwater police officer 
pulled Kellen Betz over because his Pontiac Fiero had a headlight out.

On Wednesday, lawyers were in the Florida Supreme Court arguing 
whether the veteran officer should have searched Betz's trunk after 
smelling a marijuana cigarette through the car's open window.

The officer found a bag of marijuana on Betz and then discovered more 
marijuana in a metal box in a briefcase in the trunk.

A trial judge refused to throw out the evidence of the marijuana in 
the trunk. But the 2nd District Court of Appeal overturned the ruling 
by the trial judge.

After that loss, the state appealed the issue to Florida's high court.

The strong smell of marijuana gave the police officer probable cause 
to search the entire car, according to Richard Fishkin, an assistant 
attorney general.

"Once they have probable cause to believe that the vehicle contains 
contraband, then that probable cause extends to the entire vehicle," 
Fishkin told the justices, citing a 1982 decision by the U.S. Supreme 
Court.

But several justices asked Fishkin about other federal rulings that 
seem to indicate the 1982 ruling by the U.S. Supreme Court wasn't 
quite so clear-cut.

Fishkin said that in the Betz case it was clear the strong smell of 
marijuana gave the officer probable cause to search the entire car, 
including the trunk.

"That has been consistently the holding throughout the country and it 
has been the holding in Florida until this case," he said.

However, the assistant public defender representing Betz said federal 
and state courts across the country have disagreed on when police 
should be allowed to search a trunk after they have probable cause to 
search a car's interior.

"We argue that there was never probable cause to search the trunk in 
the first place," Robert Rosen told the justices.

Justice Harry Lee Anstead asked Rosen if he wasn't making "a rather 
artificial barrier."

"Once you have probable cause to believe that contraband is in that 
vehicle, why shouldn't that be enough, then, to go into all of the 
compartments of the vehicle that logically would hold that 
contraband?" Anstead asked.

But Rosen said he didn't think it would be logical.

"It is entirely improbable, to say the least, that a burning 
marijuana in a metal box inside a briefcase in a locked trunk could 
somehow be smelled outside ... the open window of the passenger 
compartment," he said.
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