Marijuana Moment: Florida Court Blocks Police From Using The Smell Of Marijuana Alone To Search Vehicles

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A Florida court has ruled that police cannot search a person’s vehicle based only on the smell of marijuana.

The District Court of Appeal of Florida Second District on Wednesday issued an opinion, authored by Judge Nelly Khouzam, overturning a lower court decision that upheld the “plain smell doctrine” that has long permitted cannabis odor to be used as a pretense for vehicle searches.

The policy was challenged in district court after a man had his probation revoked when police pulled over a car he was in, claimed to smell marijuana, forced the occupants to exit the vehicle to conduct a search and discovered cannabis and pills.

But while it might have made sense in the past to use cannabis odor as a pretext for a search when it was strictly prohibited, the state’s laws have “fundamentally” changed, the appellate court said, referencing the legalization of hemp and medical marijuana in Florida.

“For generations, cannabis was illegal in all forms—thereby rendering its distinct odor immediately indicative of criminal activity. But several legislative amendments over the years have fundamentally changed its definition and regulation,” it said. “The cumulative result is that cannabis is now legal to possess in multiple forms, depending on discrete characteristics such as where it was procured or its chemical concentration by weight.”

“We are obligated under well-established constitutional principles to give meaning and effect to the legislature’s significant amendments to cannabis regulation,” the opinion, first reported by News Service of Florida, said.

“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. 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.”

The court also said the issue is a question of “great public importance” for the Florida Supreme Court to look at and eventually resolve.

Cannabis reform enjoys majority support in Florida, according to multiple polls that led up to a vote on an adult-use legalization ballot initiative last year. It ultimately fell short of the steep 60 percent threshold for passage, and part of the opposition came from the Florida Police Chiefs Association (FPCA) and the Florida Sheriffs Association (FSA).

But amid the state-level legalization movement, courts and lawmakers have grappled with how to revising policing policies to comply with laws permitting cannabis for medical or recreational use.

In June, for example, Chicago police officials announced an update to city law enforcement guidance to discourage officers from searching vehicles based merely on the smell of raw, unburnt marijuana.

The revised policy came amid efforts to respond to a state Supreme Court ruling late last year that said police are justified in searching a vehicle if they smell raw marijuana. Advocates and some lawmakers say the ruling is incongruous with a separate high court decision a few months earlier that found that the smell of burnt cannabis was insufficient cause to search a vehicle.

In May, a House committee in Illinois had an initial hearing on a Senate-passed bill that would clarify that police may not stop or detain drivers, or search their vehicles, based solely on the smell of cannabis.

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Critics of the use of marijuana odor as probable cause for vehicle stops and searches argue that that police disproportionately enforce drug laws against Black Americans and other people of color, and allowing stops based on the claimed smell of cannabis could increase enforcement bias.

A number of other states have passed laws around the smell of cannabis to justify police searches. Prior to legalization taking effect in Maryland, for example, Gov. Wes Moore (D) allowed a bill to become law that prevents police from using the odor or possession of cannabis alone as the basis of a search. GOP lawmakers unsuccessfully attempted to reverse that policy.

The Minnesota Supreme Court also ruled last year that police can’t use the smell of cannabis alone to justify vehicle searches—a ruling that has since been codified by the legislature and signed into law by Gov. Tim Walz (D).

And in New York in May, Gov. Kathy Hochul (D) signed a budget bill into law that notably does not include a controversial marijuana provision she proposed that would have allowed police to use the smell of marijuana as probable cause that a driver is impaired and then force them to take a drug test.

Amendments by lawmakers removed the provision, which a coalition of 60 reform groups had argued in a letter to Hochul and top lawmakers would “repeat some of the worst harms of the War on Drugs” and allow law enforcement to “restart unconstitutional racial profiling of drivers.”

Photo elements courtesy of rawpixel and Philip Steffan.

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