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.