TALLAHASSEE — A Florida appeals court ruled Wednesday that the smell of marijuana alone no longer gives police probable cause to search a vehicle, citing changes in state law that have legalized medical marijuana and hemp.
The 2nd District Court of Appeal’s decision reversed its own 2021 ruling that had allowed such searches under the “plain smell doctrine.” The court said the odor of cannabis must now be considered just one factor in the “totality of the circumstances” for determining probable cause, aligning it with standards for other potential contraband.
“For generations, cannabis was illegal in all forms — thereby rendering its distinct odor immediately indicative of criminal activity,” Judge Nelly Khouzam wrote in the majority opinion, joined by 10 other judges. But legislative changes, including a 2016 constitutional amendment legalizing medical marijuana and a 2019 law allowing hemp, “have fundamentally changed its definition and regulation,” she added.
The ruling stemmed from the case of Darrielle Ortiz Williams, who was a passenger in a vehicle pulled over by Hillsborough County deputies during a 2023 traffic stop. Officers said they smelled marijuana, searched the car and found cannabis along with MDMA, commonly known as molly, leading to a finding that Williams violated probation from a prior conviction. A circuit judge upheld the probation violation, and the appeals court did not suppress the evidence in Williams’ case, noting officers had relied in good faith on existing precedent at the time.
However, the court used the appeal to recede from the plain smell doctrine going forward, certifying the issue as one of “great public importance” for possible review by the Florida Supreme Court.
In a concurring opinion, Judge J. Andrew Atkinson emphasized that the smell of raw or burnt cannabis “is no more likely to be indicative of criminal activity than licit use of a legal substance.”
Two judges dissented. Judge Craig Villanti, joined by Judge Anne-Leigh Gaylord Moe, argued the decision could undermine road safety by limiting police ability to address impaired driving. “People who traverse our Florida highways are entitled to share the roads with sober and safe drivers,” Villanti wrote. He suggested the Legislature might need to intervene, noting that legalization has not decriminalized marijuana possession entirely.
The ruling follows similar decisions in other states amid shifting cannabis laws, though a Florida ballot measure to legalize recreational marijuana failed last year. It could prompt changes in law enforcement practices statewide and potentially reduce vehicle searches based on odor alone.
