To Search Or Not To Search? Florida Law On Smell Of Marijuana And Probable Cause

May 18, 2024 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

With the increasing legalization of marijuana across the country for recreational and medical use, law enforcement search policies surrounding the substance are evolving with the law. Florida is no exception.

In Florida, the odor of marijuana formerly served as probable cause for officers to search a suspect or their property. However, Florida’s legalization of medical marijuana in 2017 and the creation of the state’s Hemp Cultivation Licensing program are driving changes in this policy.

This page will discuss the legal status of marijuana in Florida, as well as both the historical and current role that the smell of marijuana may play in serving as probable cause for searches by law enforcement.

Marijuana’s Legal Status in Florida

Under Florida law, medical marijuana was legalized by a ballot initiative in 2017. Floridians approved the change by a vote of 71 to 29 percent. Prior to the passage of this constitutional amendment, marijuana of all types was completely illegal in the state of Florida. If a Floridian is over the age of 18 and has one of the following conditions: 

• Cancer
• Epilepsy
• Glaucoma
• AIDS
• Positive status for HIV
• PTSD
• Crohn’s disease
• ALS
• Parkinson’s disease
• Multiple sclerosis

They may qualify for the issuance of a Florida medical marijuana card. 

Recreational marijuana is still illegal in the state, and penalties for possessing it largely depend on the quantity. Under Florida law, marijuana possession typically qualifies as a first-degree misdemeanor punishable by up to a year in jail and a $1,000 fine if under 20 grams. However, this punishment may increase if large amounts of the substance are discovered.

If a person is found in possession of over 20 grams of marijuana are found but less than 25 pounds, this qualifies as a third-degree felony punishable by five years in prison and a $5,000 fine.

Possession of more than 25 pounds and up to 2,000 pounds of marijuana (or 300-2,000 plants) is a second-degree felony punishable by up to 15 years in prison and a $25,000 fine. There is also a mandatory minimum sentence of 3 years.

If the person possesses between 2,000 and 10,000 pounds of marijuana (or 2,000-10,000 plants), this is a first-degree felony, with up to $50,000 in fines and 30 years in prison. This includes the mandatory minimum sentence of 7 years.

If someone possesses 10,000 pounds of cannabis or more, this is a first degree felony, with up to $200,000 in fines and 30 years in prison. There is a mandatory minimum sentence of 15 years.

But the legal status of marijuana may soon change. That’s because the Florida Supreme Court recently cleared the way for a ballot amendment to be voted on in 2024 that would allow the use of recreational marijuana for the first time in Florida. However, even if this initiative is approved by 60% or more of state voters, only adults over age 21 would be permitted to use marijuana recreationally.

Important: If the amendment passes, the quantity of marijuana that a Floridian over the age of 21 would be permitted to possess for recreational use is 3 grams, and up to 5 grams if this is in a concentrated form.

However, the fact that marijuana is not yet completely legal does not mean that police practices on marijuana aren’t changing. On the contrary, many courts and police departments throughout the state have decided that the odor of marijuana alone is now an insufficient probable cause basis for a law enforcement search in Florida.

Marijuana in Searches and Seizures

Searches by law enforcement officers of suspects are not constitutionally permissible unless there is probable cause of a legal violation that would warrant such a search. Because of the evolving legal status of marijuana, however, what once served as probable cause for police to perform a search may not anymore. 

Under Florida Statutes Section 581.217, hemp is no longer classified as a controlled substance by the Florida state legislature, but an agricultural commodity. Because of this change, there is an increasing reluctance among courts in Florida and some police departments to have the smell of marijuana serve as the only basis for a search. That’s because the smell of legal hemp and illegal marijuana are indistinguishable.

Florida’s creation of the Hemp Cultivation Licensing Program, which codified the reclassification of hemp from controlled substance to an agricultural commodity, resulted from federal legislation that passed in 2018. The Agriculture Improvement Act of 2018 first removed hemp from the Federal Controlled Substance Act, giving states like Florida the authority to form their own regulatory frameworks around hemp. Prompted by the change in federal policy, Florida did so.

The 19th Circuit in South Florida was the first in Florida to establish a standard that marijuana odor alone is an insufficient basis for a search. In a July 2019 memo to law enforcement in his jurisdiction, State Attorney Bruce Colton stated that the apparent smell of marijuana could no longer serve as probable cause for a search due to the declassification of hemp as a controlled substance.

But the 19th Circuit’s policy is not in line with most State Attorneys and courts, who have not yet taken the smell of marijuana alone off the table as probable cause. As recreational marijuana remains unlawful in Florida, and medical marijuana is not permitted to be consumed in a vehicle under Florida Statutes Section 381.986, the smell of hemp or marijuana is often still viewed by police in Florida as sufficient to search a suspect or their property.

Even though little case law exists from Florida’s highest courts on the issue, there are some state courts trending in the direction of preventing the smell of marijuana from serving as probable cause. In 2020, Florida’s 20th Circuit Court ruled in State v. Nord that the smell of marijuana alone could not serve as the basis for a search. However, the Second District Court of Appeal disagreed, finding that nothing in Florida law prevented this. Even though the smell of marijuana alone still serves as probable cause in most of Florida, courts are disagreeing on this issue for the first time in the state’s history.

While it did not rule on whether the smell of marijuana could serve as the sole grounds for a search, the Fourth District Court of Appeal noted in Fortin v. State (2024) that Florida courts are increasingly skeptical of this practice. 

Though Florida’s Courts of Appeal rejected the argument that the smell of marijuana could not itself serve as probable cause in Johnson (2019) and Owens (2021), a concurring judge in the First District Court of Appeal’s 2022 Hatcher decision criticized the legal viability of the “plain smell doctrine” in Florida. If marijuana is legalized for recreational use in 2024, it is likely courts will grow more wary of allowing solely the smell of the substance to serve as the basis for probable cause.

Contact a Marijuana Defense Attorney in Tallahassee, Florida

If you have been charged with a marijuana-related offense in Leon County or the surrounding North Florida area, contact Don Pumphrey and the attorneys at Pumphrey Law to discuss the facts of your case. Given that marijuana remains illegal in Florida, it is important to hire a knowledgeable Tallahassee criminal defense attorney who can help you through this process. Our aim is to get your charges lessened or dismissed so you can get your life back on the right track. Call (850) 681-7777 for a free consultation and take the first step towards freedom.

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