9 Investigates

Police use smell to conduct warrantless searches: 9 Investigates

OSCEOLA COUNTY, Fla. — Ahmed Aviles-Rodriguez was driving in Osceola County in December of 2014 when he was pulled over by a deputy for his window tint.  By the end of the traffic stop, Ahmed would be in handcuffs, his car searched without a warrant, and his window tint never checked.

Across the country and in Florida, law enforcement can conduct a search without a warrant provided there is probable cause.

In Florida, Chapter 901.15 of the Florida Statutes covers probable cause and allows officers to conduct arrest without warrant if the “person has committed a felony or misdemeanor or violated a municipal or county ordinance in the presence of the officer.”

In Florida this extends to what is known as “plain smell”.  Similar to “plain view” which allows an officer to conduct a search without a warrant if there is evidence in plain view, an officer can conduct a similar search if there is a smell that leads the officer to believe there may be something illegal.

This is what happened to Ahmed Aviles-Rodriguez.

“After he pulled me over and told me my tint was too dark, he wanted to search the vehicle right away,” says Rodriguez.  “After knowing my priors of being convicted of marijuana he wanted to search my vehicle, but there was no smell.”

With Rodriguez in handcuffs, the deputies searched his vehicle, ultimately finding what was reported on an arrest affidavit as “possession of marijuana under 20 grams.”

Rodriguez was loaded into the back of the patrol car, taken to jail, and his was vehicle towed.  But charges were never filed.  Whatever was found in the search was not marijuana, and it was determined the case was not suitable for prosecution.

“I have no idea why this happened,” says Rodriguez who says he spent almost $3,000 on towing and impound fees as well as hiring an attorney.

“It’s an investigative tool that police can use at their discretion,” says criminal defense attorney Joe Castrofort, who represented Rodriguez.

Castrofort, who himself is former law enforcement, says this issue isn’t with the searches, which can be a valuable tool for law enforcement, but rather the lack of oversight.  Almost no departments document these warrantless searches unless the search ends in an arrest.

“It’s a blank check to search whatever you want whenever you want and it’s going unchecked,” says Castrofort. “It’s a legally and constitutionally significant intrusion of a citizens rights liberty, there should be a documentation.”

Of the agencies across central Florida contacted by Nine Investigates, only the Florida Highway Patrol documents every stop regardless of outcome.

The Osceola County Sheriff’s Office, which conducted this stop said in a statement, “reports are generated when an arrest is made or a criminal investigation is conducted. While plain smell gives a deputy probable cause to search for the suspected marijuana, If it does not lead to an arrest or probable cause of a crime a report may not necessarily be generated.”

“These searches are problematic because there is a rea propensity to use them as a pretext,” says Lars Trautman, a senior fellow of criminal justice and civil liberties policy with the R-Street Institute in Washington DC. “If you saw something illegal, or touched something illegal there is some sort of object at the end of that, that can be brought in front of a judge, a defendant can challenge it and say there is no way that is what you say it was, but you can’t contain a smell, so it’s just the officer’s word that he smelled what he said he smelled.”

Trautman is a former prosecutor and says these searches, while legal, should be documented as a way of preventing and rooting out misuse.  He also points out that the sense of smell can vary from person to person and is subjective.

“Because smells can linger, they can cling to different things and just because you smell something like marijuana in the car, doesn’t mean there’s anything there,” says Trautman.