{"id":188965,"date":"2026-03-01T16:36:42","date_gmt":"2026-03-02T00:36:42","guid":{"rendered":"https:\/\/portal.bluetogold.com\/?p=188965"},"modified":"2026-09-17T07:11:28","modified_gmt":"2026-09-17T14:11:28","slug":"is-floridas-plain-smell-doctrine-getting-vaporized","status":"publish","type":"post","link":"https:\/\/portal.bluetogold.com\/?p=188965","title":{"rendered":"Is Florida\u2019s Plain Smell Doctrine Getting Vaporized?"},"content":{"rendered":"

Is Florida\u2019s Plain Smell Doctrine Getting Vaporized?<\/h1>\n

Under the Totality of the Circumstances, Establishing Probable Cause for Warrantless Car Search Under the Automobile Exception, Likely Requires More than the Odor of Marijuana<\/h2>\n

Overview<\/h2>\n

Establishing probable cause<\/a> to search a vehicle, and reasonable suspicion for an investigatory stop, likely require more than the smell of raw or burnt marijuana. Florida courts have held that, due to the legalization of hemp (low-THC cannabis), the smell or sight of marijuana is no longer plainly criminal. Probable cause is established based on the totality of the circumstances considering factors such as signs of intoxication, incriminating statements, or elimination of innocent explanations.<\/p>\n

Doctrines Underpinning Warrantless Car Searches<\/h2>\n

Under the automobile exception<\/a>, \u201cpolice may search a [readily mobile] vehicle without a warrant so long as they have probable cause to believe that it contains contraband or evidence of a crime.\u201d Described as a fair probability, \u201cprobable cause exists where the facts and circumstances within the officer\u2019s knowledge\u201d would \u201cwarrant a man of reasonable caution in the belief that an offense has been or is being committed.\u201d<\/p>\n

Under the plain view doctrine<\/a>, \u201cif police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and . . . have a lawful right of access to the object, they may seize it without a warrant.\u201d In Minnesota v. Dickerson<\/em>, the U.S. Supreme Court explained that \u201cif contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy.\u201d The item must \u201cclearly [be] incriminating evidence or contraband\u201d without requiring further search. Plain view, \u201cright to be, right to see\u201d, has been expanded to describe plain feel and plain smell doctrines. Yet, Florida courts have held that the odor of cannabis is no longer plainly criminal due to the legalization of hemp, which looks and smells identical to marijuana.<\/p>\n

Cannabis is No Longer Plainly Criminal Amid Legalization of Medical Marijuana and Hemp (Low-THC Cannabis)<\/h2>\n

While recreational marijuana remains illegal in Florida, cannabis is legal when (1) properly \u201cdispensed from a medical marijuana treatment center;\u201d or (2) it is hemp. While Florida prohibits using medical marijuana in a vehicle, hemp is not a controlled substance and may be smoked while driving similar to tobacco. Florida statutes require that law enforcement be able to access the medical marijuana use registry to confirm whose possession is authorized.<\/p>\n

Florida construes its state constitutional protection against unreasonable search and seizure in accordance with U.S. Constitutional interpretation of the Fourth Amendment. Florida\u2019s six district courts of appeal recently analyzed how the odor of marijuana may contribute to establishing probable cause for warrantless car search under the automobile exception. The majority hold that probable cause requires more than the odor of marijuana, which may be considered as one factor under the totality of the circumstances.<\/p>\n

First District<\/h3>\n

In Hatcher v. State<\/em> (2022), police stopped a van due to erratic driving including veering outside the lane, traveling through parking spaces, and nearly striking a sidewalk curb. Appearing \u201cunusually relaxed and lethargic\u201d during the stop, the driver lacked a license and admitted he \u201cjust smoked a blunt and discarded it before the traffic stop.\u201d The officer believed \u201cblunt\u201d meant a marijuana, not a hemp, cigarette, also noting signs of intoxication. A K-9 sniffed the van, alerting at the driver\u2019s door. Subsequent search revealed a \u201cdigital scale with a leafy green residue on it and pills that were believed to be MDMA [ecstasy].\u201d The Court held that probable cause existed to believe the driver \u201cwas under the influence of marijuana he had smoked while driving,\u201d with the odor of burnt marijuana serving as just one factor contributing to \u201cthe whole picture.\u201d The defendant\u2019s argument, that the smell of marijuana alone is insufficient for vehicle search, was beside the point, because probable cause was established based on the totality of the circumstances.<\/p>\n

Second District<\/h3>\n

In Williams v. State<\/em> (2025), police stopped a car for traffic violations, in which Mr. Williams, who was on probation, was a passenger. The two officers detected the odor of cannabis emanating from the car, disagreeing on whether it smelled burnt or fresh. Solely based on this smell, police searched the vehicle, finding bags of cannabis and a pill in the glove box. Upon arrest, a search of Mr. Williams revealed dimethylpentylone, a controlled synthetic stimulant, hidden in his sock.<\/p>\n

The Court held that, due to the legalization of hemp, \u201cthe plain smell doctrine can no longer establish probable cause based solely on the odor of cannabis;\u201d the totality of the circumstances governs.<\/p>\n

In Cherfils v. State<\/em> (2025), police stopped a vehicle in a high-crime area due to an improperly lit license plate, and smelled burnt marijuana emanating from the driver. The driver presented his medical card, supporting the reasonable inference that he was impermissibly smoking marijuana, not hemp, while driving. While the driver stated he had smoked marijuana earlier that day, the officer described that the odor was palpable to a greater degree, suggesting smoking while driving. The driver\u2019s conduct, described as nervous, evasive, dishonest, and argumentative, including refusal to exit the car, compounded the fair probability that he was illegally smoking in his vehicle. The search revealed contraband in the car side door, and the driver was charged with possession of cocaine with intent to sell. The Court held that probable cause, described as \u201cmore than a mere possibility,\u201d was established under the totality of the circumstances.<\/p>\n

<\/p>\n

Conclusion<\/h2>\n

Hemp (low-THC cannabis) provides a legal explanation for the sight and odor of marijuana, which look and smell identical. Thus, the smell of either burnt or raw (fresh) marijuana is no longer plainly criminal, but may be one factor among others contributing to probable cause for warrantless car search. The totality of the circumstances remains the standard for establishing probable cause, with many courts holding that, standing alone, a sniff is not \u201cup to snuff.\u201d<\/p>\n

References<\/h2>\n
    \n
  1. \u201cBecause the \u2018plain smell\u2019 of cannabis is no longer clearly indicative of criminal activity, it alone cannot provide reasonable suspicion to support an investigatory detention.\u201d Williams v. State<\/em>, 421 So.3d 809, 813 (Fla. 2nd DCA 2025); Baxter v. State<\/em>, 389 So.3d 803, 806 (Fla. 5th DCA 2024).<\/li>\n
  2. FLA. STAT. \u00a7 581.217(2)(a)\u2013(b); 21 U.S.C. \u00a7 802(16)(B)(i) (excluding hemp from the federal definition of marijuana).<\/li>\n
  3. The totality of the circumstances \u201callows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that \u2018might well elude an untrained person.\u2019\u201d State v. Fortin<\/em>, 383 So.3d 820, 822\u201323 (Fla. 4th DCA 2024) (quoting Hatcher v. State<\/em>, 342 So.3d 807, 810 (Fla. 1st DCA 2022)).<\/li>\n
  4. Hatcher<\/em>, 342 So.3d at 809 (\u201cBased on the sergeant’s training and experience, he believed that [the driver\u2019s] laidback and lethargic demeanor suggested that he was under the influence of marijuana. The sergeant also smelled the odor of burnt marijuana coming from inside the van,\u201d stopped due to erratic driving).<\/li>\n
  5. Id. at 811 (\u201c[T]he driver \u201cadmitted that he had just smoked a blunt and discarded it before the traffic stop. The officer believed that \u2018blunt\u2019 meant a marijuana cigarette, not a hemp cigarette\u201d, contributing to probable cause).<\/li>\n
  6. See Aldama v. State<\/em>, 394 So.3d 148 (3rd DCA 2024) (\u201c[T]he totality of the circumstances provided . . . probable cause to . . . search [the car] upon the plain smell of marijuana and the dispelling of any lawful explanations.\u201d).<\/li>\n
  7. Id. at 150; Hatcher<\/em>, 342 So.3d at 810 (citing Pennsylvania v. Labron<\/em>, 518 U.S. 938, 940 (1996)).<\/li>\n
  8. Fortin<\/em>, 383 So.3d at 822\u201323.<\/li>\n
  9. Minnesota v. Dickerson<\/em>, 508 U.S. 366, 375 (1993) (plain feel doctrine).<\/li>\n
  10. Washington v. Chrisman<\/em>, 455 U.S. 1, 5\u20136 (1982).<\/li>\n
  11. United States v. Angelos<\/em>, 433 F.3d 738, 747 (10th Cir. 2006) (reviewing the plain smell doctrine).<\/li>\n
  12. The \u201clegalization 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.\u201d Baxter v. State<\/em>, 389 So.3d 803, 810\u201311 (Fla. 5th DCA 2024); Ford v. State<\/em>, 400 So.3d 838, 843 (Fla. 5th DCA 2025).<\/li>\n
  13. Hatcher<\/em>, 342 So.3d at 810 n.3 (quoting FLA. STAT. \u00a7 581.217(3)(d)).<\/li>\n
  14. FLA. STAT. \u00a7 381.986(1)(k)5.f (prohibiting use of medical marijuana [i]n a school bus, a vehicle, an aircraft, or a motorboat.\u201d). \u201cWhile it is not illegal to smoke hemp in a vehicle, medical marijuana users are prohibited by criminal statute from using medical marijuana by smoking it in a vehicle.\u201d Cherfils v. State<\/em>, No. 2D2023-1932 (2nd DCA Dec. 31, 2025) (citing FLA. STAT. \u00a7 581.217).<\/li>\n
  15. FLA. STAT. \u00a7 581.217(3)(e) (\u201c\u2018Hemp\u2019 means the plant Cannabis sativa L. and any part of that plant . . . that has a total delta-9-[THC] concentration that does not exceed 0.3 percent.\u201d).<\/li>\n
  16. FLA. STAT. \u00a7 381.986(5)(a) (\u201cThe medical marijuana use registry must be accessible to law enforcement agencies.\u201d).<\/li>\n
  17. FLA. CONST. art. I, \u00a7 12; see also Aldama<\/em>, 394 So.3d at 150.<\/li>\n
  18. Hatcher v. State<\/em>, 342 So.3d 807 (Fla. 1st DCA 2022) (\u201cBased on the officer\u2019s observations, training, and experience, as well as [the driver\u2019s] statements and demeanor, the officer reasonably believed that [he] was under the influence of marijuana he had smoked while driving.\u201d).<\/li>\n
  19. Williams v. State<\/em>, 421 So.3d 809 (Fla. 2nd DCA 2025) (\u201cBecause the ‘plain smell’ of cannabis is no longer clearly indicative of criminal activity, it alone cannot provide reasonable suspicion to support an investigatory detention.\u201d) (quoting Baxter<\/em>, 389 So.3d at 806).<\/li>\n
  20. Absent court-ordered conditions, Florida law allows probation officers (not law enforcement generally) to search individuals on probation. Williams<\/em>, 421 So.3d at 848 n.2).<\/li>\n
  21. Cherfils v. State<\/em>, No. 2D2023-1932 (Fla. 2nd DCA Dec. 31, 2025) (\u201cThe totality of the circumstances,\u201d including the driver\u2019s dishonesty \u201cas to the nature of the odor, his evasive responses to law enforcement questioning, his nervous and argumentative disposition, and evidence that the type of cannabis [medical marijuana] was not legal to smoke in a vehicle, provided . . . more than a mere possibility that an offense had been or was being committed.\u201d).<\/li>\n
  22. \u201c[H]emp and marijuana are indistinguishable by sight or smell.\u201d Hatcher<\/em>, 342 So.3d at 810 n.3.<\/li>\n
  23. Baxter<\/em>, 389 So.3d at 812 (The \u201csmell of cannabis may be a relevant, but not dispositive, factor to consider under the totality of the circumstances.\u201d).<\/li>\n
  24. See Hoehaver<\/em>, 389 So.3d at 768 (Kilbane, J., concurring) (The officer \u201cdeveloped probable cause based on the totality of the circumstances.\u201d).<\/li>\n
  25. Ford<\/em>, 400 So.3d at 840\u201341 (\u201cIs the undifferentiated alert behavior of a . . . drug-sniffing dog sufficient to supply the sole probable cause for a warrantless search of a car, when that K-9 . . . cannot distinguish between illegal pot and legal medical marijuana or hemp? In other words, is that sniff up to snuff? Going forward, that dog won’t hunt.\u201d).<\/li>\n<\/ol>\n

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