Robert Barbosa was arrested for marijuana related offenses in Greenacres, Florida on Monday. Specifically, Barbosa’s marijuana arrest was for cultivation of marijuana and possession of drug paraphernalia. It is presently unknown whether or not he has been released on bond.
Based on what is reported in the news, I suspect that Barbosa may be able to get his entire case dropped.
According to news reports, police were called to Barbosa’s home when “someone reported the garage door suspiciously open.” Upon approaching the residence, police claim to have smelled marijuana. At some point thereafter, police obtained a search warrant and discovered the presence of 66 marijuana plants in various stages of growth. Barbosa’s marijuana arrest followed thereafter.
This case presents some interesting issues regarding police search and seizure and I think someone in Robert Barbosa’s position would be best served by hiring a criminal defense attorney as soon as possible.
Of course, before any concrete conclusions may be drawn, all the facts of Mr. Barbosa’s case must be known and analyzed. At the present time, only limited information is available. Whether or not Barbosa’s marijuana arrest was justified or not, will be determined based on the specific facts of the case.
However, based on what has been reported in the news, it seems like Robert Barbosa’s entire case will come down to the validity of the search warrant and whether or not he was the sole occupant of the home.
To properly defend Barbosa, his defense lawyer will need to learn more about the “suspiciously open garage door.”
First of all, did the caller identify him or herself to police or was the call made anonyously?
Second, what exactly did the caller actually report? Did he/she frantically call to 9-1-1 or was the police department’s non-emergency number used? Did the caller report how long the door was open? Overnight? All day? A few hours?
Did the caller describe any details about the door? Did it appear damaged or broken into? How far was the door open? Was it cracked open just a little or was it open all the way?
Were any strangers observed entering or exiting the garage? Did they look like they were burglarizing the home or doing something illegal? Did the situation appear to look dangerous or require an immediate, emergency police response?
Third, what exactly did the police observe when they arrived at the residence? Did the garage door show signs of forced entry? Was a burglar alarm going off?
After all, people leave their garage doors open all the time! Especially when the weather is as nice as it has been over the past few weeks!
From my perspective as a criminal defense attorney, my main concern surrounds the legitimacy of the police intrusion onto Barbosa’s private property based on this report. If the report did not provide police with a legally sufficient reason to enter upon Barbosa’s property, then Barbosa’s arrest for marijuana charges may end up being thrown out in court.
Let me explain…
For the time being, we need to focus our attention on the first intrusion by police when they entered the residential property, approached the garage door, and smelled the marijuana. I think it is clear that the police were responding to a call and did not have a search warrant at this point in time.
In order for police to lawfully enter private property and conduct a search, they must either have a warrant or there must be exigent circumstances. So far, there has been no mention of exigent circumstances and it does not appear as though any would realistically exist in this case anyway.
That means, the initial entry by police onto Barbosa’s property was likely unlawful.
Now lets be clear, the responding police officers may have acted correctly. Maybe there was something legitimate about the way the garage door was open that aroused their immediate action. If so, the charges for cultivating marijuana and possession of drug paraphernalia may stick.
However, even if this is true, it cannot be taken for granted or assumed by defense lawyers.
Roberto Barbosa’s attorney will need to depose these officers and question them about the details. As I mentioned previously, what was it about this door that caused alarm? More importantly, what was it about this door that justified the police intrusion?
Ultimately, if the circumstances surrounding the door did not create an exigent circumstance to enter the property and investigate, then their subsequent discovery of the odor of marijuana was illegally obtained.
If the odor of marijuana was discovered pursuant to an illegal intrusion and an illegal search, then the search warrant is tainted as well.
If the search warrant is tainted because it was based on illegally discovered evidence, then discovery of the 66 marijuana plants is also tainted.
If the discovery of the 66 marijuana plants is tainted, then a judge must suppress them pursuant to a motion to suppress filed by Barbosa’s defense lawyer. Once the plants are suppressed, prosecutors will not have any evidence to support the charges in question and the case will have to be dropped.
For the next part of this analysis, lets assume the initial intrusion was valid. Even if that is the case, Barbosa’s criminal defense attorney will have to question the police officers about the exact details of what odor they smelled, where they smelled the odor, and what their impressions were. By determining the answers to these questions, Barbosa’s criminal defense lawyer will be able to determine if there is sufficient, admissible evidence to support the felony charges Barbosa is facing as a result of his arrest for marijuana cultivation.
If the odor formed the ultimate basis of the search warrant, then the details surrounding the odor must be sufficient enough to justify the intrusion into Barbosa’s home. To determine if the odor of marijuana was sufficient enough to support the warrant, Barbosa’s lawyer must analyze the search warrant application in detail.
For instance, did the search warrant application explain where the odor emanated from? Was it a general odor smelled on or near the house? Or did the odor clearly emanate from the garage? For instance, did the odor get noticeably stronger as one approached closer and closer to the home?
To justify a search of the home, there must be a “nexus” between the odor and the house. If no connection can be made between the odor and the house, then the warrant may have been rendered in error.
If the warrant was rendered in error, then any evidence obtained as a result of executing that warrant is tainted. Just like in the above discussion, if discovery of the evidence is tainted, then it must be suppressed by the judge. If the evidence is suppressed, prosecutors will not be able to prove their allegations and the charges will have to be dropped.
One must keep in mind that the ultimate discovery of contraband does not justify an illegal search. In our legal system, the ends do not justify the means. On the contrary, the law requires police officers to justify their actions as they occur as opposed to justifying them long after the fact.
Again, before any conclusions can be drawn, all the case facts must be known. It is still too early to tell if Barbosa’s marijuana arrest will hold up in court. Whether or not these officers acted correctly or incorrectly cannot be determined based on the little information presently available in the news.
Ultimately, it will be up to Barbosa’s defense attorney to determine if he has any viable defenses, such as grounds to challenge the initial entry by police or the search warrant that was later used to discover the marijuana plants.
In the end, I hope the true and just result is obtained in the courts.