March 18, 1988. Rehearing Denied June 17, 1988. Appeal from the Court of Criminal Appeals, 527 So.2d 743. Walden M. Buttram of Finlayson Buttram, Gadsden, for petitioner.
A police officer's detecting the smell of raw or burned marijuana coming from a particular place or person is sufficient to provide probable cause to search that place or person. See Blake v. State, 772 So.2d 1200 (Ala.Crim.App. 2000) (holding that the odor of burning marijuana emanating from the defendant's automobile constituted probable cause to search the defendant and his passenger and to arrest either for possession of marijuana); State v. Betterton, 527 So.2d 743, 745-46 (Ala.Crim.App. 1986); State v. Mathews, 597 So.2d 235, 237 (Ala.Crim.App. 1992). In Mathews, the Court of Criminal Appeals stated:
When the state trooper asked the defendant to come to his trooper car, he noticed that the defendant was unsteady on his feet, exhibited slow reflexes, and smelled of alcohol. In deciding Smith, the Court of Criminal Appeals recalled State v. Betterton, 527 So.2d 743 (Ala.Crim.App. 1986), in which it had held that a police officer did not need probable cause to believe that criminal activity was in progress before approaching a parked car, because the approach involved no initial stop or seizure. The court stated in Smith that the only difference between Smith andBetterton was that the state trooper in Smith drove his vehicle behind the defendant's vehicle, effectively preventing the defendant from leaving, and that "[e]ven at that time, . . . the trooper already had a particularized and objective basis for suspecting [the defendant] of criminal activity; thus, a Terry [v. Ohio, 392 U.S. 1 (1968),] stop was justified."
"Since a pretrial dismissal of a pending charge does not involve a determination of guilt, it is not the equivalent of an acquittal." State v. Betterton, 527 So. 2d 743, 747 (Ala. Crim. App. 1986). Further, the parties had not agreed that the circuit court could conduct a bench trial to determine Burton’s guilt or innocence in relation to the original murder charge.
"Since a pretrial dismissal of a pending charge does not involve a determination of guilt, it is not the equivalent of an acquittal." State v. Betterton, 527 So.2d 743, 747 (Ala.Crim.App.1986).
See, e.g., Wilson v. State, supra, 409 Md. at 439 (discussing the community caretaking function of law enforcement). Cf. State v. Betterton, 527 So.2d 743, 744-45 (Ala. Crim. App. 1986) (reversing suppression order because there was no stop or seizure when police officer "merely approached and knocked on the window of a car parked in a public place late at night"), aff'd sub nom. Ex parte Betterton, 527 So.2d 747 (Ala. 1988). In sum, because we conclude that the motions court was not clearly erroneous in finding that the officer's approach to appellant's truck was a seizure under these circumstances, and because there was no reasonable articulable suspicion to support that seizure, the stop was unreasonable under the Fourth Amendment.
Consequently, the courts have found probable cause to search when the distinctive odor of marijuana is found emanating from a particular place and have likewise found probable cause to arrest when the odor was detected coming from a particular person."" ‘[W. LaFave, 2 Search and Seizure ] § 3.6(b) [(2d ed. 1987)] (footnotes omitted). See, e.g., State v. Betterton, 527 So. 2d 743 (Ala. Cr. App. 1986), aff'd, 527 So. 2d 747 (Ala. 1988). "The odor of fresh marijuana or marijuana smoke, standing alone, has ... been held or recognized as providing probable cause to conduct warrantless searches of ... persons and their clothing."
"A police officer's detecting the smell of raw or burned marijuana coming from a particular place or person is sufficient to provide probable cause to search that place or person. See Blake v. State, 772 So.2d 1200 (Ala.Crim.App. 2000) (holding that the odor of burning marijuana emanating from the defendant's automobile constituted probable cause to search the defendant and his passenger and to arrest either for possession of marijuana); State v. Betterton, 527 So.2d 743, 745-46 (Ala.Crim.App. 1986); State v. Mathews, 597 So.2d 235, 237 (Ala.Crim.App. 1992). In Mathews, the Court of Criminal Appeals stated:
"[W.LaFave, 2 Search and Seizure] § 3.6(b) [(2d ed. 1987)](footnotes omitted). See, e.g., State v. Betterton, 527 So.2d 743 (Ala.Cr.App. 1986), aff'd, 527 So.2d 747 (Ala. 1988). `The odor of fresh marijuana or marijuana smoke, standing alone, has . . . been held or recognized as providing probable cause to conduct warrantless searches of . . . persons and their clothing.' Donald M. Zupanec, Annotation, Odor of Narcotics as Providing Probable Cause for Warrantless Search, 5 A.L.R.4th 681, 686 (1981) (footnotes omitted).
Moreover, the odor of marijuana emanating from Hopper, coupled with Hopper's apparent physical impairment, provided probable cause to arrest Hopper for possession of a controlled substance. See State v. Mathews, 597 So.2d 235, 237-38 (Ala.Cr.App. 1992); andState v. Betterton, 527 So.2d 743, 746 (Ala.Cr.App. 1986), aff'd, 527 So.2d 747 (Ala. 1988). Instead of immediately arresting Hopper, Corp. Fells searched Hopper and found the marijuana pipe in his pants pocket.