Is Smell of Marijuana Probable Cause in Florida?

August 30, 2024 Don Pumphrey, Jr. Criminal Defense, Drug Charges, News & Announcements Social Share

Is “Plain Smell” of Marijuana Probable Cause in Florida? A Major New Court Ruling Says No

For decades, Florida courts have generally agreed that the plain smell of marijuana is sufficient for police officers to conduct a search of a person or their vehicle, often referred to as the “plain smell doctrine.” But a new ruling from a major Florida court has cast doubt upon this former maxim, likely setting up a fight before the Florida Supreme Court.

In August 2024, Florida’s 5th District Court of Appeal ruled in Baxter v. State that the odor of fresh marijuana alone is insufficient for police to initiate an investigatory detention and search a person’s vehicle after a stop, if there is no other evidence of illegal activity. 

This is a significant departure from existing Florida case law and in particular, the 2nd District Court of Appeal’s 2021 ruling in Owens v. State. In that case, the court held that the odor of marijuana could serve as the probable cause basis for a search due to its continued status as a controlled substance. As the Florida Supreme Court has not spoken on the matter, the Owens decision has been binding precedent for the last three years.

Upholding the “plain smell doctrine” in Florida and overruling the 20th Judicial Circuit’s ruling in Nord v. State (2020), the Owens court wrote at the time: 

“[W]e conclude that the recent legalization of hemp, and under certain circumstances marijuana, does not serve as a sea change undoing existing precedent, and we hold that regardless of whether the smell of marijuana is indistinguishable from that of hemp, the smell of marijuana emanating from a vehicle continues to provide probable cause for a warrantless search of the vehicle.” Owens v. State, 317 So.3d 1218 (Fla 2nd DCA 2021)

The Owens court also noted that even if the scent of fresh marijuana may eventually serve as an insufficient probable cause basis for a search – presumably upon its recreational legalization – the smell of burnt marijuana would nevertheless continue to serve as a probable cause basis as it would indicate someone was driving under the influence of the substance.

The Baxter court, however, disagreed on the issue, holding that the odor of fresh marijuana alone doesn’t serve as probable cause. The court held that a “totality of the circumstances” approach must be taken when evaluating whether to detain someone, and the smell of fresh marijuana is only one factor in this. Because of the evolving legal status of hemp and cannabis, the court was persuaded that “smell alone” is insufficient for police to conduct a search of an individual or their vehicle short of other indicators of criminal activity (such as driving erratically).

“The incremental legalization of certain types of cannabis at both the federal and state level has reached the point that its plain smell does not immediately indicate the presence of an illegal substance. As a result, the smell of cannabis cannot on its own support a detention.” Baxter v. State, 49 Fla. L. Weekly D1643 (Fla 5th DCA 2024)

In this particular case, however, the court also held that the fruits of the officer’s search of the defendant were nevertheless admissible because the officer was relying upon Owens at the time of Baxter’s arrest in 2022 – which was binding precedent in Florida.

“Because it is no longer ‘immediately apparent’ that the smell of cannabis is synonymous with criminal activity, it cannot be the sole basis supporting reasonable suspicion for an investigatory detention. Instead, the smell of cannabis is a factor that may be considered under the totality of the circumstances. However, because Accra reasonably relied on binding precedent at the time of the arrest, we affirm. We further certify conflict with the stated holding in Owens.” Baxter v. State, 49 Fla. L. Weekly D1643 (Fla 5th DCA 2024)

The conflict in these results between the two cases increases the likelihood that the fate of the “plain smell doctrine” will be decided by the Florida Supreme Court. Given the current legal status of hemp and the illegal status of marijuana for recreational use or use in a vehicle, it is unclear where Florida’s highest court will land. 

But the legal status of marijuana in Florida could soon change, even before the Florida Supreme Court resolves this discrepancy. That’s because earlier in 2024, the Florida Supreme Court paved the way for a ballot amendment that would permit recreational marijuana use for the first time in the state. 

If this measure is approved by at least 60% of voters, individuals over the age of 21 would be allowed to use marijuana recreationally. And if the amendment passes, this could be yet another step towards plain smell alone being insufficient to support probable cause for a search or seizure.

Important: If the amendment is passed, adults over 21 would be allowed to possess up to 3 grams of marijuana for recreational use, or up to 5 grams if it is in a concentrated form.

For now, recreational marijuana remains illegal in Florida and is chargeable as at least a first-degree misdemeanor. In the event someone is charged with a marijuana-related offense, it is vital to seek out aggressive and experienced legal counsel as soon as possible. The attorneys at Pumphrey Law have decades of experience fighting to win for clients across Florida who have been charged with marijuana-related crimes.

Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for almost 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

As a former prosecutor, former state police officer and a life member of the Florida Association of Criminal Defense Lawyers, I have observed that being arrested anywhere in Florida can be extremely stressful. Being charged and “formally charged” by information in Tallahassee or Leon County, Wakulla County, Jefferson County, Gadsden County, Quincy, Crawfordville, Florida State University, Florida State University Campus, Florida State University Student Code of Conduct, Leon County Jail, facing first appearance in Leon County, Tallahassee Community College, or Florida A&M University can be life changing. Given the possibility of a lengthy jail or in some cases lengthy prison sentence and hefty financial penalties, it is important to contact an aggressive, trusted and experienced Tallahassee criminal defense attorney as soon as possible.

Don Pumphrey, Jr. and the attorneys at Pumphrey Law have decades of experience fighting on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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