# Third District Court of Appeal

State of Florida

Opinion filed April 6, 2016.

Not final until disposition of timely filed motion for rehearing.

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No. 3D14-2410

Lower Tribunal No. 14-2034

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### L.L., a juvenile

, Appellant,

vs.



### The State of Florida

, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Richard Hersch

, Judge.

Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant

Public Defender

, for appellant.

Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant

Attorney General

, for appellee.

Before SHEPHERD, ROTHENBERG and SCALES, JJ.

SHEPHERD, J.This is an appeal from a withheld adjudication and judicial warning for

marijuana possession. The issue before us is whether a police officer’s

identification of marijuana, arrived at by sight and smell alone, is admissible

experience-based opinion testimony. Because the officer’s opinion was based on

his personal knowledge and perception and resulted from a process of everyday

reasoning, we hold that the officer’s opinion was admissible as lay opinion

testimony under Section 90.701, Florida Statutes.

BACKGROUND

This case is a typical marijuana possession case. L.L., a juvenile, was

charged with one count of simple possession of cannabis under Section

893.13(6)(b), Florida Statutes. At the adjudicatory hearing below, the State relied,

in part, on the testimony of Officer Joseph Munecas, who offered his opinion that

the substance in question was marijuana. Prior to trial, L.L. requested a Daubert 1

hearing to challenge the admissibility of Officer Munecas’s opinion testimony.

The judge declined to hold a pre-trial hearing, but agreed to conduct the hearing

during the course of the trial.

The prosecutor began by laying the foundation for Officer Munecas’s

opinion testimony, asking the officer about his field experience and training. The

trial judge, apparently adverting to Professor Charles W. Ehrhardt’s seminal work

1 Daubert v. Merrell Dow Pharmaceuticals, Inc.

, 509 U.S. 579 (1993).

2on evidence, 2 stopped the prosecutor from formally tendering the witness as an

expert, instructing the prosecutor as follows:

What you want to do is you’re permitted to ask an

opinion

. . . . And just for trade craft, it’s probably wise at

that point to turn to the Court and say, Your Honor, I’m

about to ask this witness for an opinion which you don’t

have anything in this case to ask an opinion about yet

. . . but that way it triggers the other side to see if they want

to do any voir dire.

Officer Munecas testified that on January 5, 2014, he was out patrolling

when he spotted L.L. crouching down in the driver's seat of a parked vehicle.

Officer Munecas approached the vehicle on foot, and observed L.L. reach over and

under the passenger seat. The officer testified that when he knocked on the

window and L.L. rolled it down, he smelled a “strong odor of marijuana.” L.L.’s

objection to this testimony as “improper expert opinion” was overruled. When

asked what he meant by “a strong odor of marijuana,” Officer Munecas explained:

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.

2 See Charles W. Ehrhardt

, Ehrhardt’s Florida Evidence § 702.1 (2015 ed.) (“It is

not necessary for counsel to formally proffer or tender a witness as an expert to the

court. In fact, it may be an improper comment by the court if the witness is

‘declared’ an expert before the jury.” (footnotes omitted)).

3Upon smelling what he believed was marijuana, Officer Munecas asked L.L.

if he had any weapons or narcotics in the car. In response, L.L. admitted he had

marijuana and handed over a clear plastic bag from the center console. 3 The bag,

having been properly preserved through the chain of custody, was produced at trial

and Officer Munecas, once again over L.L.’s objection, was permitted to offer his

opinion that the substance inside was marijuana. Officer Munecas explained his

conclusion as follows:

Well the first thing he [L.L.] told me it was when he gave

it to me. I asked him if he had any and he gave it to me.

Also the smell, you can smell through this bag how

strong the marijuana smells. Like I said it's a distinct and

a very unique odor unlike any other odor. When you look

at it it's a green leafy substance, it has hairs, it has

crystals and it’s just something that through field

experience that over time I’ve kind of developed a knack

for I guess you could say, and like I said I’ve effected

numerous arrests, hundreds of arrests for the substance.

Officer Munecas also searched L.L.’s vehicle and found a rolled cigarette

under the front passenger seat. At trial, and again over L.L.’s objection, the officer

identified the item as a marijuana cigarette:

Because the way Number 1 that it smelt. It had like I said

the distinct and very unique odor. Then also if you look

at it on the ends of it it's a green leafy substance which is

3 L.L.’s motion below to suppress confessions, admissions, and statements was

granted in part and denied in part. The trial court denied the motion as to L.L.’s

first statement that he had marijuana and granted the motion as to other admissions

L.L. made after he handed Officer Munecas the bag. Neither party challenges the

court’s ruling on L.L.’s motion to suppress.

4in it which is consistent with what was inside this bag. So

due to the smell, due to the appearance of the green leafy

substance of, you know, the hairs on it, the crystals on it,

that led me to believe that is a marijuana cigarette.

During cross-examination, counsel for L.L. repeatedly asked Officer

Munecas how he was able to identify the substance as marijuana. The officer

maintained that his opinion was “just based on my experience and based on my

senses.” Counsel pressed the officer further, asking whether his experience-based

methodology satisfied any of the traditional Daubert factors. For instance, counsel

asked whether Officer Munecas used the scientific method, whether he collected

any data to formulate his opinion, whether there were any peer reviewed articles

determining the reliability of identifying cannabis by sight and smell, or whether

he was aware of the false positive rate regarding his method of identifying the

substance. Officer Munecas was unable to answer counsel’s pointed questions

beyond asserting that he had seen and smelled marijuana on numerous occasions in

the past and therefore was able to identify it when he saw and smelled it on this

occasion. The officer finally conceded: “Sir, I am a police officer, I’m not a

scientist.”

Although the trial judge expressed doubts as to whether Officer Munecas’s

“testimony is based upon sufficient facts or data[,] is the product of reliable

principles and methods, and whether he has applied the reliable principles and

methods in this case[,]” the judge ruled that the testimony was admissible under

5our prior cases allowing such testimony, which were decided before the adoption

of the Daubert standard by the 2013 amendments to the Florida Evidence Code.

L.L. appeals, challenging the continued viability of this practice.

ANALYSIS

This case turns on the application of certain sections of Florida’s Evidence

Code that govern the admissibility of opinion testimony. A trial court’s ruling on

the admissibility of evidence is reviewed for an abuse of discretion; however, the

trial court’s interpretation of the evidence code is reviewed de novo

. Almond v.

State

, 1 So. 3d 1274, 1276 (Fla. 1st DCA 2009). “Where, as here, a Florida

evidentiary rule is patterned after its federal counterpart, ‘federal cases interpreting

comparable provisions are persuasive and routinely looked to for interpretive

guidance.’” Bank of N.Y v. Calloway

, 157 So. 3d 1064, 1071 n. 3 (Fla. 4th DCA

2015), reh’g denied (Mar. 3, 2015), review denied

, 177 So. 3d 1263 (Fla. 2015)

(quoting Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc.

, 109 So.

3d 329, 334 n.1 (Fla. 4th DCA) rev. dismissed, 130 So. 3d 692 (Fla. 2013)).

Section 90.702: Expert Opinion Testimony

The parties focused primarily on Section 90.702, which sets forth

admissibility requirements for expert opinion testimony. In 2013, the Florida

Legislature amended Section 90.702 to pattern it after Rule 702 of the Federal

6Rules of Evidence. Ch. 2013-107, Laws of Fla. As amended, Section 90.702,

Florida Statutes, reads as follows:

90.702 Testimony by experts

If scientific, technical, or other specialized knowledge

will assist the trier of fact in understanding the evidence

or in determining a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or

education may testify about it in the form of an opinion

or otherwise, if:

(1) The testimony is based upon sufficient facts or

data;

(2) The testimony is the product of reliable principles

and methods; and

(3) The witness has applied the principles and

methods reliably to the facts of the case.

(amendments in bold). One of the Legislature’s stated purposes in amending

Section 90.702 was “to adopt the standards for expert testimony in the courts of

this state as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc.

, 509 U.S.

579 (1993), General Electric Co. v. Joiner

, 522 U.S. 136 (1997), and Kumho Tire

Co. v. Carmichael

, 526 U.S. 137 (1999), and to no longer apply the standard in

Frye v. United States

, 293 F.2d 1013 (D.C. Cir 1923) in the courts of this state.”

Ch. 2013-107, Laws of Fla. (Preamble to § 90.702). The Legislature also intended

to prohibit the much criticized 4 pure opinion exception to the Frye admissibility

standard as provided in Marsh v. Valyou

, 977 So. 2d 543 (Fla. 2007). Id.

4 See e.g.

, David L. Faigman, et al., 3 Mod. Sci. Evidence § 21:11 (2015-2016

Edition) (“Florida, like a number of other Frye states, mistakenly resisted efforts to

apply admissibility criteria to anything other than general principles

. . . . This

7Daubert

, Joiner

, and Kumho Tire

, known as the Daubert trilogy, are the

three United States Supreme Court cases that together articulate the Daubert

standard. In Daubert

, the Court referenced five factors courts could use to

determine the reliability of expert scientific testimony: (1) whether the expert’s

theory or technique can be (and has been) tested; (2) whether the theory or

technique has been subjected to peer review and publication; (3) the known or

potential rate of error; (4) the existence and maintenance of standards controlling

the technique’s operation; and (5) whether the technique has been generally

accepted in the relevant scientific community. 509 U.S. at 593-94. In Joiner

, the

Court held “that abuse of discretion is the proper standard by which to review a

district court’s decision to admit or exclude scientific evidence.” 522 U.S. at 146.

And, in Kumho Tire

, the Court held the Daubert factors not only apply to scientific

knowledge but to technical or other specialized knowledge as well. 526 U.S. at

147-48. The Kumho court also explained the Daubert inquiry is a flexible one and

the factors do not constitute a definitive checklist or test. Id. at 150; see also id. at

158-59 (Scalia, J., concurring) (“I join the opinion of the Court, which makes clear

that the discretion it endorses

— trial-court discretion in choosing the manner of

testing expert reliability

— is not discretion to abandon the gatekeeping function. I

remained the situation in Florida until 2013, when the legislature enacted a statute

that effectively moved Florida into the Daubert cloumn [sic].”); Stephen E. Mahle,

The “Pure Opinion” Exception to the Florida Frye Standard

, Fla. B.J., February

2012, at 41.

8think it worth adding that it is not discretion to perform the function inadequately.

Rather, it is discretion to choose among reasonable means of excluding expertise

that is fausse and science that is junky.”).

L.L. argues that Officer Munecas’s opinion testimony did not satisfy

Daubert’s reliability standard. The State counters by arguing the Daubert factors

are “flexible and nonexhaustive.” However, we do not decide this case under

Daubert’s expert opinion testimony framework because the admissibility of Officer

Munecas’s experience-based testimony is more appropriately analyzed under

Section 90.701.

Section 90.701: Lay Opinion Testimony

We begin with the text of Section 90.701, Florida Statutes:

90.701. Opinion testimony of lay witnesses

If a witness is not testifying as an expert, the witness’s

testimony about what he or she perceived may be in the

form of inference and opinion when:

(1) The witness cannot readily, and with equal accuracy

and adequacy, communicate what he or she has perceived

to the trier of fact without testifying in terms of

inferences or opinions and the witness's use of inferences

or opinions will not mislead the trier of fact to the

prejudice of the objecting party; and

(2) The opinions and inferences do not require a special

knowledge, skill, experience, or training.

L.L. argues that Officer Munecas’s testimony cannot be lay opinion

testimony because it requires “specialized knowledge.” We disagree. Similar to

9its federal counterpart, Section 90.701 forbids lay opinion testimony that requires

“special knowledge, skill, experience, or training.” Of course, “[a]ll lay witnesses

have some specialized knowledge

— knowledge relevant to the case that is not

common to everyone

. . . . Indeed, that is why all witnesses

— lay or expert

— are

called: to get what they know about the case that other people do not.” Paul F.

Rothstein, Fed. Rules of Evidence Rule 701 (3d ed.). The text of the Federal Rules

offers more guidance than does Section 90.701 because it specifies that lay opinion

testimony is not based on “specialized knowledge within the scope of Rule 702 .”

Fed. R. Evid. 701 (emphasis added). With this in mind, the question is not whether

the opinion requires specialized knowledge, as all opinion testimony does, but

whether the specialized knowledge is sufficiently specialized to fall within the

scope of Section 90.702. See Rothstein, supra

, Rule 701.

The Advisory Committee Notes to Rule 701 prove instructive on this point,

distinguishing between specialized knowledge within the scope of Rule 702 and

personal knowledge: “courts have permitted lay witnesses to testify that a

substance appeared to be a narcotic, so long as a foundation of familiarity with the

substance is established.” Fed. R. Evid. 701 advisory committee’s note to 2000

amendment. This is because “[s]uch testimony is not based on specialized

knowledge within the scope of Rule 702, but rather is based upon a

layperson’s personal knowledge .” Id. ; see also § 90.604, Fla. Stat. (“Except as

10otherwise provided in s. 90.702, a witness may not testify to a matter unless

evidence is introduced which is sufficient to support a finding that the witness has

personal knowledge of the matter.”) Similarly, Professor Imwinkelried (who is

cited several times by the United States Supreme Court in Daubert ) explains that in

drawing the line between lay and expert testimony,

the judiciary should bear in mind that the real basis for

distinguishing between lay and expert opinion testimony

is whether the opinion rests in part on vicarious

experience. In the past, when police officers have

testified about the modus operandi for certain crimes, the

courts have almost automatically leaped to the conclusion

that the officer was testifying in an expert capacity.

However, the classification should turn on the

experiential basis of the opinion rather than the

witness' occupation

. If a patrol officer proffered the

opinion based solely on his or her personal observation of

that type of crime, the opinion should be categorized as

lay.

Edward J. Imwinkelried, The Taxonomy of Testimony Post-Kumho: Refocusing

on the Bottomlines of Reliability and Necessity

, 30 Cumb. L. Rev. 185, 212 (2000)

(emphasis added).

This is not a novel principle, and it is reflected in case law from around the

state. See e.g.

, Chesser v. State

, 30 So. 3d 625, 628 (Fla. 1st DCA 2010)

(“Opinion evidence of matters perceived by one of the senses

. . . [has] usually

been admitted. Non-expert witnesses have been allowed to give opinion testimony

of these matters when they have knowledge based upon their personal perception.”

11(quoting Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 701.1 at 668

– 71

(2008 ed.))); Gonzales v. State

, 95 So. 3d 1002, 1004 (Fla. 3d DCA 2012) (“The

opinion must be based on personal knowledge of the facts underlying the opinion

.

. . . The lay witness may not rely on hearsay in forming an opinion, but the witness

may base the opinion on what the witness has perceived.” (citing Somerville v.

State

, 626 So. 2d 1070 (Fla. 1st DCA 1993))); Barnes v. State

, 415 So. 2d 1280,

1283 (Fla. 2d DCA 1982) (“Section 90.701, Florida Statutes (1979), allows

opinions of lay witnesses only when based upon what the witness has

‘perceived.’”).

Here, Officer Munecas’s opinion is based solely on his personal, firsthand

knowledge and what he perceived. Cf. Daubert

, 509 U.S. at 592 (“Unlike an

ordinary witness, see Rule 701, an expert is permitted wide latitude to offer

opinions, including those that are not based on firsthand knowledge or

observation.”). For instance, when asked how he was able to identify the “strong

smell of marijuana” coming from L.L.’s rolled-down window, Officer Munecas

explained:

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.

12In addition to the requirement that lay opinion testimony be based on the

personal knowledge and perception of the witness, the Advisory Committee Notes

explain that courts should consider the witness’s method of reasoning: “the

distinction between lay and expert witness testimony is that lay testimony ‘results

from a process of reasoning familiar in everyday life,’ while expert testimony

‘results from a process of reasoning which can be mastered only by specialists

in the field. ’” Fed. R. Evid. 701 advisory committee’s note to 2000 amendment

(emphasis added) (quoting State v. Brown

, 836 S.W.2d 530, 549 (1992)); see also

Floyd v. State

, 569 So. 2d 1225, 1232 (Fla. 1990) (“Lay witness opinion is

admissible if it is within the ken of an intelligent person with a degree of

experience

. . . . We find the officers’ testimony within the permissible range of lay

observation and ordinary police experience.”). As one scholar has explained:

[T]he distinction lies in whether the witness’s

reasoning process entails a reliable methodology

beyond everyday reasoning

. A lay witness, however

experienced, offers no methodology beyond ordinary

reasoning

. An expert is equipped to draw more

sophisticated, yet still reliable, inferences. The crux of

expert testimony is that it presents inferences that are

supported through the application of a reliable

methodology. Thus, the witness who relies on experience

to support an expert opinion cannot simply claim insights

arrived at by applying everyday reasoning to that

experience base, but must explain the methodology

employed to reach that opinion. An experienced witness

who does not bring such methodology to bear should be

subject to the restrictions of the lay opinion rule.

13Anne Bowen Poulin, Experience-Based Opinion Testimony: Strengthening the Lay

Opinion Rule

, 39 Pepp. L. Rev. 551, 578-79 (2012) (emphasis added)).

One important reason the Daubert standard imposes a more demanding

reliability inquiry upon expert opinion testimony is that the opinion results from a

methodology or reasoning process that might be foreign to the trier of fact. See

Kumho Tire 526 U.S. at 149 (“And whether the specific expert testimony focuses

upon specialized observations, the specialized translation of those observations

into theory, a specialized theory itself, or the application of such a theory in a

particular case, the expert's testimony often will rest “upon an experience

confessedly foreign in kind to [the jury's] own.”) (quoting Learned Hand,

Historical and Practical Considerations Regarding Expert Testimony

, 15 Harv. L.

Rev. 40, 54 (1901)). But in cases such as the one now before us, even if the trier of

fact does not have the personal experience necessary to identify the substance in

question, the reasoning process is not “foreign in kind.” 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. 5

5 Improperly classifying opinions that rely on everyday reasoning as expert opinion

testimony could lead to absurd results. For example, appellant argues that even if

L.L.’s admission were sufficient for a finding of guilt, “it is odd to rely on a

juvenile’s assessment that a substance is marijuana when that juvenile himself has

not been qualified as an expert[.]” Assuming L.L. offered opinion testimony in the

first place (he did not because his statements were made outside of court), he need

not be qualified as an expert to identify marijuana if his testimony, like that of

Officer Munecas, were based on sufficient personal knowledge and arrived at

14Here, Officer Munecas’s reasoning process is nothing that requires a

specialist in the field of drug identification; it is reasoning familiar in everyday life. 6

See A.A. v. State

, 461 So. 2d 165, 166 (Fla. 3d DCA 1984) (recognizing that

“numerous cases hold that marijuana is not difficult to characterize without

chemical analysis”) (quoting Turner v. State

, 388 So. 2d 254, 257 (Fla. 1st DCA

1980)). Moreover, Officer Munecas did not employ a methodology beyond his

ordinary reasoning to arrive at his conclusion. As he explained during crossexamination:

It’s not per se a method because what you’re trying to say

is it’s something that I do every single time, right? When

I see it I know what it is. So it's something that is not

--

You know, I don't go and break down okay did I do A,

did I do B. No, I look at it, I smell it, I see it and it is

what it is.

Finally, we hasten to add that although the more demanding Daubert

admissibility standard does not apply to lay opinion testimony, there is

nevertheless a reliability inquiry. Not only must lay opinion testimony be based on

the witness’s personal knowledge, section 90.604, Florida Statutes, and

through a process of everyday reasoning.

6 Professor Imwinkelried suggests everyday reasoning is “a comparative judgment,

employing a generalization to evaluate a case-specific fact or facts” where the

generalization is based largely on firsthand knowledge, and information about the

case-specific facts is acquired exclusively through personal observation. Edward J.

Imwinkelried, Distinguishing Lay from Expert Opinion: The Need to Focus on the

Epistemological Differences Between the Reasoning Processes Used by Lay and

Expert Witnesses

, 68 SMU L. Rev. 73, 104 (2015).

15perceptions, section 90.701, Florida Statutes, but the witness must have sufficient

personal knowledge to support the opinion. See Imwinkelried, Distinguishing

,

supra

, at 94 (“[T]he judge must determine whether the extent of the witness’s

familiarity is ‘sufficient.’”) (quoting Fed. R. Evid. 901(b)(2) (advisory committee’s

note)). 7 Here, we have no difficulty concluding that Officer Munecas had

sufficient personal knowledge to support his opinion that the substance was

marijuana. He testified that he had years of experience identifying marijuana by

sight and smell, even going so far as to claim marijuana is so predominant in the

community that he sees it “practically every day.”

CONCLUSION

For the reasons outlined above, we conclude the trial court did not abuse its

discretion in admitting Officer Munecas’s marijuana identification testimony in

this case. Officer Munecas’s testimony was admissible lay opinion testimony

under Section 90.701 because it was based on sufficient personal knowledge and

his senses of sight and smell, and it was arrived at through a process of everyday

reasoning. We therefore affirm the decision of the trial court.

Affirmed.

7 As with expert opinion testimony, once lay opinion testimony clears the

reliability hurdle, “[v]igorous cross-examination” is one of several “traditional and

appropriate means” of attacking admissible evidence. See Daubert

, 509 U.S. at

596. This is precisely what occurred below.

1617