A state appeals court on Wednesday significantly curtailed police search powers, ruling that the smell of cannabis alone no longer provides probable cause to search a vehicle. The 2nd District Court of Appeal reversed course from its own prior decision, citing the U.S. Constitution’s Fourth Amendment and changes in state law that legalized medical marijuana and hemp products.
The court, in a majority opinion fully joined by ten judges, stated that legislative changes have “fundamentally changed” the definition and regulation of cannabis, meaning its distinct odor is no longer “immediately indicative of criminal activity.”
As a result, the court backed away from what it described as a “plain smell doctrine” for cannabis, which had allowed officers to search vehicles solely based on the odor.
“In light of significant legislative amendments… its mere odor can no longer establish that it is ‘immediately apparent’ that the substance is contraband,” wrote Judge Nelly Khouzam. The court now requires that the odor of cannabis be considered as just one factor among others under the “totality of the circumstances” to establish probable cause, aligning it with the test for other suspected contraband.
Three judges wrote or joined concurring opinions supporting the shift, with one noting 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.”
However, two judges dissented, arguing the ruling “wholesale erode[s]” the well-developed Fourth Amendment analysis and undermines public safety by making it harder for law enforcement to address impaired driving.
The ruling stems from a 2023 Hillsborough County case where police searched a car occupied by Darrielle Ortiz Williams after smelling cannabis. The court ultimately declined to suppress the evidence in Williams’ case, stating officers were acting in “objectively reasonable reliance on binding appellate precedent” at the time of the search.
The 2nd District also certified the question as one of “great public importance” to the Florida Supreme Court, seeking a final statewide resolution on the issue.
READ: $940 Million In ‘Waste’: Florida CFO Slams Local Governments, Demands Massive Property Tax Relief
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