Smells Like Multiple Fourth Amendment Violations

Remember those Pinellas County, Florida, sheriff's deputies with the suspiciously keen olfactory senses? They identified possible marijuana growers by using a surveillance camera to track the customers of Simply Hydroponics (right), a store in Largo. But since hydroponic equipment has various legal uses, the fact that people patronized the store did not give police probable cause to search their homes. Investigators needed something more, which they often supplied by claiming to have smelled marijuana while standing on public property outside of people's homes (including the home of at least one person who was not actually growing marijuana). Now the Tampa Bay Times, which first called attention to the deputies' amazing noses, reports that the Pinellas-Pasco State Attorney's Office "is dismissing charges against an accused St. Petersburg marijuana grower and will reconsider dozens of similar cases" due to "allegations that narcotics deputies trespassed and lied to gather evidence."

Specifically, "Sworn search warrant applications by deputies Paul Giovannoni and Michael Sciarrino—the lead detectives in the grow house cases—said they could smell indoor pot farms from public sidewalks and neighbors' yards. But defense attorneys think that the two deputies and at least one supervisor trespassed to get their information, which is illegal." The St. Petersburg case involved David Cole, a 60-year-old who said he was growing marijuana in a shed to treat the symptoms of his multiple sclerosis. The Times says Cole noticed "concrete blocks stacked in stair-step fashion on his neighbor's property next to his fence," and he "thinks officers might have put them there to vault his fence."

Pinellas County Sheriff Bob Gualtieri, who is conducting an internal investigation, did not want to get into the details of who smelled what or trespassed where, saying only that "information came to light Friday that calls into question the veracity of those involved in making that case to the point where I believe the right thing to do is to have that case dismissed." In addition to Cole's case, dozens of others could be affected. "We need to look at them all," Gualtieri said, "because the information we have goes to general veracity. Once there is that allegation, then it touches anything that certain people may have touched….Many [cases] may be involved before it is all said and done. Many may go."

A defense attorney tells the Times about a client who "was caught with 93 plants and sentenced to three years in prison after a detective secured a search warrant by stating that he could smell marijuana from a sidewalk." The lawyer "had a National Weather Service meteorologist ready to testify that the wind was blowing away from the detective that night, but nobody in the court system would listen."