No Daubert Expert Witness Needed to Identify Marijuana, Rules Florida Court

4th Amendment

The Third District Court of Appeal ruled in L.L., a Juvenile v. The State of Florida that a police officer who possessed sufficient personal experience with marijuana could offer a lay opinion — not an expert opinion — identifying the substance as marijuana.  The court held that meeting the five elements of Daubert were not required.

In 2013, Florida changed from the “Frye” standard to the “Daubert” standard.  According to the Third DCA, this “typical marijuana possession case” was elevated to a 7  page appellate opinion in order to address the new standard and waive the smoke away from Rule 701 (lay opinion) and Rule 702 (expert opinion).

The facts: a police officer saw the defendant crouching down in a car, approached, and smelled marijuana when the window rolled down.  The defendant handed over marijuana when he was asked by the officer if he had narcotics or guns (notably, the question was about “narcotics,” which would not include weed).  The officer then identified the substance.  At court, he was permitted to testify:

It has a distinct and very unique smell unlike any other. And over the years through my experience I recognize the smell very quick. I mean it’s something that it’s very unique, and it’s very distinct. And when you smell it it’s unlike any other smell, and it’s very identifiable.

This testimony was permitted under Rule 701 (as it would have been pre-Daubert) because it was based upon the witness’ “experiential basis” (personal knowledge) and everyday reasoning rather than some specialized knowledge or analysis.

As for a lay person’s ability to detect marijuana and testify about it — which apparently is not restricted to police officers — the court wrote:

Many people who have seen and smelled marijuana would be able to recognize it in the same way they recognize anything else they have seen or smelled before.

For those interested in a discussion about the (not so) new Daubert standard, procedure for voir dire of an expert, and issues relating to Rule 701 and 702, this case is a concise, if not amusing, summary.

Image credit:

4th Amendment
Florida Police Can (1) Search Your Car After Smelling Marijuana and (2) Cut a Hole in Your Underwear to Find Drugs (Jevin Hilliard v. Florida)

Florida drivers (and those in the car) should be aware that it is fairly well-settled that police have probable cause to search a car and occupants during a traffic stop based on “the faint odor of cannabis.” But how far can the search go? We find out in Jevin Hilliard …

4th Amendment
When Can You Withdraw Consent for a DUI Blood Draw in Florida? (Florida v. Jennifer Ivie)

A Florida driver was involved in an accident, taken to the hospital, and interviewed by police who were conducting a DUI investigation. The officer spoke with the driver, advised her of her Miranda rights, conducted at least one visual test, and otherwise detected signs of intoxication. The officer asked the …

4th Amendment
Can A State Search Cellphone of Person on Probation Without Warrant or Probable Cause? (Florida v. Mark Leroy Phillips, Sr.)

Florida’s Fifth District Court of Appeal considered the question whether, under the Fourth Amendment, the State of Florida could search the cellphone of a man on probation for child abuse convictions (and who was a registered sex offender) when there was no warrant or reasonable suspicion. The court, in Florida …