Call us now:
Every criminal practitioner in Florida should be well aware that if the police claim they smell marijuana from you or your car, they are going to conduct a search, and Florida Court’s will back up the legality of that search. However, recently with recent law changes, especially concerning the changing definitions of marijuana and hemp, and the medicalization of marijuana in this State, Courts are beginning to change the level of deference given to the police all around the State when it comes to police justification of search and seizure based on the plain smell of marijuana.
Recently the 2nd DCA had at least one judge make known their position on the shifting marijuana search landscape in a dissent authored on November 22, 2024. To understand the dissent out of Hillsborough County and why it is important requires some background on search and seizure law, and medicalization of marijuana law changes, and some other recent cases.
Search and Seizure and Probable Cause
First, before the recent medicalization of marijuana in Florida, if a police officer claimed to smell marijuana from you or your vehicle that would be considered at the very minimum reasonable suspicion that a crime has been committed, and frequently could justify a full search of the person or vehicle for marijuana and/or illegal drugs. That is because marijuana is known to have a distinct smell either fresh or burnt, and either one clearly indicates the presence of the illegal substance, and most likely its possession or use by a person or people in the immediate area. Therefore if an Officer claimed to smell marijuana, they possessed ‘probable cause’ a crime was being committed, and therefore were justified in a vehicle search under the 4th Amendment of the Constitution.
Marijuana Law Changes
Following the medicalization of marijuana in Florida, Florida law has altered the definition of marijuana to distinguish it from hemp (which is not illegal), and has allowed for the possession or use of marijuana with a prescription. So now in order to accuse someone of possession of marijuana as a criminal offense, the police must prove the substance is marijuana and not hemp (which is somewhat difficult to do since it requires scientific testing) and even if substance is marijuana, there is reasonable chance it is possessed and/or used in a lawful manner pursuant to a prescription (which are more readily available every day). And as an additional wrinkle to remember, across multiple jurisdictions, police and State attorney’s have acknowledged that hemp and marijuana are indistinguishable by smell or visual inspection.
Recent Marijuana Cases
That leaves the question remaining, how can the police claim the smell of marijuana justifies a probable cause search for illegal drugs, when all they could be smelling is a lawful prescription substance, or possibly legal hemp? The answer is that more Courts are beginning to tip the scales in favor of stating the police cannot, because marijuana prescriptions are becoming too commonplace to allow this kind of systematic police intrusion into the privacy rights of many citizens.
For example, the most important recent case to discuss the topic and set precedent stopping this police practice is Baxter v State which I have already written about here.
Conclusion
Which brings us back to the Simmons dissent by Chief Judge Sleet.
The recent Simmons case involved the search of a person following a vehicle search due to the smell of marijuana. The Court clarified its position. One, the determination of probable cause remains one that is based on the totality of the circumstances of each case and the law in place at the time of the offense. Two, effective June 23, 2017, the definition of “cannabis” found in section 893.02(3), Florida Statutes, “does not include ‘marijuana,’ as defined in s. 381.986, if manufactured, possessed, sold, purchased, delivered, distributed, or dispensed[] in conformance with s. 381.986 and pursuant to 381.986 medical marijuana is lawful to use with certain restrictions via prescription. Three, the smell of fresh marijuana only indicates the presence of marijuana, not its use. Therefore the Court concludes that due to the legalization of medical marijuana, the odor of fresh marijuana alone does not establish a substantial chance that criminal activity is occurring, hence, no probable cause to search.
Court even goes as far as to suggest the proper technique for police to use when encountering the smell of marijuana from a vehicle (ask if they have a marijuana card and is there any medical marijuana in the vehicle).
The final message is clear: the odor of fresh marijuana alone is no longer a reasonable cause to detain and search someone based on the changing legal landscape of marijuana in Florida. This is a changing area of the law, and if you need help navigating it, ask for help as soon as possible. Matt Landsman, Landsman Law, Board Certified Criminal Trial Attorney.