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Florida marijuana search and seizure laws are always changing based on updates to the law and new court rulings. Recently 2 cases were published which illustrate the changing nature of search and seizure law in Florida. One Case is Rosales v State 3D23-1857 out of the 3rd DCA (July 31st, Miami), and the other is Baxter v State 5D2023-0118 from the 5th DCA (Duval County, august 2nd). It’s important to understand both if you want to get a picture of what is occurring in Florida Courts right now with respect to marijuana law and what it could mean to someone charged with a crime that was discovered based on the smell of marijuana.
Before looking at either of these cases its important to know that for a very long time, in Florida, the plain smell of marijuana, fresh or burnt, provided a police officer with probable cause to conduct a search for drugs based on the plain smell of illegal drugs (plain smell operates as exception to the warrant requirement under the 4th amendment). However, many criminal defense attorney’s around the state have been challenging the police justification for a search due to the plain smell of marijuana following the medicalization of marijuana via ballot initiative. They have been arguing that the police should not be able to arrest or search someone based on potentially innocent behavior, namely possessing or using a lawful substance – lawfully prescribed marijuana.
Courts have been upholding searches despite these 4th amendment challenges, frequently citing nuances in the marijuana regulations and other technicalities to support the police seizure of drugs or evidence.
In Rosales, the Defendant appealed a judgment and sentence, and at least in part the Trial Court ruled based on the reliance on a police officer claiming that the lawfulness of the underlying search was due to the smell of marijuana. The Defense raised the issue that the smell of marijuana should no longer be sufficient probable cause due to the prevalence of medical marijuana in Florida. The Court denied the appeal, supporting the seizure of evidence, and went on to explain their reasoning in a short written opinion.
Affirmed. See § 381.986(1)(k)(5)(f) (excluding from “medical use” the “[u]se or administration of marijuana in . . . a school bus, a vehicle, an aircraft, or a motorboat, except for low-THC cannabis not in a form for smoking”) (emphasis added); Johnson v. State, 275 So. 3d 800, 802 (Fla. 1st DCA 2019) (“[E]ven if smoking marijuana were legal altogether, the officers would have had probable cause based on the fact that Johnson was operating a car . . . [T]he possibility that a driver might be a medical marijuana user would not automatically defeat probable cause . . . Here, we cannot say that it would be unreasonable for an officer to conclude there is a fair probability that someone driving around . . . smelling of marijuana, is acting unlawfully. And this is true whether or not Florida law allows the medical use of marijuana in some circumstances.”).
Simply put, the Court is saying that the smell of marijuana is still probable cause despite some legal marijuana use in Florida, so officers should still be able to use the smell of marijuana during traffic stops as justification for detention or search. Rosales is a good example of a Florida Court maintaining the status quo in pushing back against those who wish to prevent the police from targeting marijuana users for searches and detentions sometimes in violation of their constitutional rights.
That being said an important case was published in another jurisdiction within days of Rosales and that’s the Baxter case mentioned above. In Baxter, the Court took a major step forward in strengthening the privacy rights of Florida citizens when it recognized the prevalence of lawful marijuana prescriptions and usage in Florida, and at least in part concluded that “the plain smell of marijuana is no longer clearly indicative of criminal activity, it alone cannot provide reasonable suspicion to support an investigatory detention”. Sadly Mr. Baxter’s appeal was still affirmed, leaving his judgement and sentence intact based on a good faith exception applicable to law enforcement officers who rely on binding precedent.
What this means though, is that the Baxter Court published an opinion which is itself binding precedent, and could be used to prevent another police officer from claiming they were acting in good faith in the future. The Baxter ruling is well reasoned and heavily cited, and the Court made very explicit that reasonable suspicion from now on in the 5th DCA will need more than the plain smell of marijuana to justify a detention much less a search.
This is just one small piece of the legal framework that makes up search and seizure law in Florida. Not every case involves search and seizure challenges or the plain smell of marijuana, and it takes experienced criminal defense attorneys to know what issues may exist in your case. The law is always changing, and legal and factual issues exist in many cases which you need to know about if you’ve been charged with a crime.