Pointing to laws allowing use of medical marijuana and hemp, a state appeals court Wednesday reversed course and said police officers can’t search vehicles only on the basis of smelling cannabis.
The 2nd District Court of Appeal’s main opinion said that for “generations, cannabis was illegal in all forms — thereby rendering its distinct odor immediately indicative of criminal activity.” But the opinion said legislative changes have “fundamentally changed its definition and regulation” and made cannabis legal to possess in multiple forms.
Citing the U.S. Constitution’s Fourth Amendment protections against unreasonable searches and seizures, the appeals court backed away from what it described as a “plain smell doctrine” related to cannabis.
“In light of significant legislative amendments to the definition and regulation of cannabis, its mere odor can no longer establish that it is ‘immediately apparent’ that the substance is contraband,” Judge Nelly Khouzam wrote in an opinion fully joined by nine other judges. “Accordingly, the plain smell doctrine can no longer establish probable cause based solely on the odor of cannabis. Rather, we now align the Fourth Amendment analysis for cannabis with the test that applies to other suspected contraband, such that its odor is a valid factor to be considered along with all others under the totality of the circumstances.”
Three other judges wrote or joined concurring opinions, including Judge J. Andrew Atkinson, who wrote that what is “pertinent to the resolution of this case on its facts is that an officer who smells either raw cannabis or the smoke from burnt or burning cannabis has encountered an odor that is no more likely to be indicative of criminal activity than licit use of a legal substance. On this record and under the statutes as they currently read, that smell, in isolation, does not give rise to probable cause to justify a search.”
But Judge Craig Villanti, in a dissent joined by Judge Anne-Leigh Gaylord Moe, wrote that changes over the past decade to allow medical marijuana and hemp products “did not wholesale decriminalize the possession of marijuana.” Villanti pointed to safety concerns about people driving while impaired by cannabis.
“People who traverse our Florida highways are entitled to share the roads with sober and safe drivers,” Villanti wrote. “The majority interpretation of the law and wholesale erosion of well-developed, reasonable Fourth Amendment analysis will only undermine the evolved public expectation that law enforcement will continue to protect them as they motor along Florida's highways.”
The Hillsborough County case stemmed from law-enforcement officers in 2023 stopping a car in which Darrielle Ortiz Williams was a passenger. Officers smelled cannabis and searched the car, finding bags that included cannabis.
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Williams, who was on probation at the time, also was found to have a drug known as “molly” in a plastic bag in a sock. A circuit judge found that Williams had violated probation. That led to the appeal, which was considered by the full appellate court.
Wednesday’s opinion reversed course from a 2021 decision by the 2nd District that said police were still able to conduct searches based on smelling cannabis. But it put the Tampa Bay-area court in line with an opinion issued last year by the 5th District Court of Appeal.
The 2nd District also took a step known as certifying a question of “great public importance” to the Florida Supreme Court to resolve the issue.
In a twist in Wednesday’s opinion, the court declined to suppress the evidence in Williams’ case because the court said “our precedent expressly permitted the search at the time it occurred” and “law enforcement was acting in objectively reasonable reliance on binding appellate precedent.”
Florida voters in 2016 passed a constitutional amendment that allowed the use of medical marijuana. Lawmakers subsequently passed legislation to put the amendment into effect and also have allowed use of other hemp products.
In his dissent, Villanti wrote that he hopes the Supreme Court will address the issue about searches but also pointed to the possibility of the Legislature getting involved.
“I am equally hopeful that the Florida Legislature is aware of the dilemma that was inadvertently caused by the widespread acceptance of hemp and legalization of medical marijuana,” he wrote. “I invite the Legislature to review this issue and to consider that its recent legislation legalizing cannabis for medical purposes has made it easier for nefarious individuals to engage in criminal activity. Because I believe this is a great injustice to the citizens of Florida, I dissent from the majority's conclusion that we have no choice but to recede from the ‘plain smell’ doctrine.”
The main opinion was joined by Chief Judge Matthew Lucas and Judges Stevan Northcutt, Morris Silberman, Robert Morris, Anthony Black, Daniel Sleet, Susan Rothstein-Youakim, Andrea Teves Smith and Suzanne Labrit.
In addition to Atkinson, the concurring judges were Patricia Kelly and Edward LaRose.
