TAMPA, FL - On Wednesday, October 1, a state appeals court in Florida reversed course and said that police cannot search vehicles only on the basis of smelling marijuana.
In their main decision, the 2nd District Court of Appeals pointed to laws allowing use of medical marijuana and hemp, according to NBC6. The opinion and said that for "generations, cannabis was illegal in all forms, thereby rendering its distinct odor immediately indicative of criminal activity."
The opinion also said that legislative changes have "fundamentally changed its definition and regulation" and made cannabis legal to possess in multiple forms. Citing the 4th 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."
In a dissent, Judge Craig Villanti and 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 also pointed to safety concerns about people driving while impaired by cannabis.
The 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. 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.
In 2016, Florida voters 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 the 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.
In their main decision, the 2nd District Court of Appeals pointed to laws allowing use of medical marijuana and hemp, according to NBC6. The opinion and said that for "generations, cannabis was illegal in all forms, thereby rendering its distinct odor immediately indicative of criminal activity."
The opinion also said that legislative changes have "fundamentally changed its definition and regulation" and made cannabis legal to possess in multiple forms. Citing the 4th 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."
In a dissent, Judge Craig Villanti and 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 also pointed to safety concerns about people driving while impaired by cannabis.
The 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. 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.
In 2016, Florida voters 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 the 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.
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Comments
2025-10-07T13:53-0400 | Comment by: CRAIG
So then the smell of alcohol should not be used to warrant a vehicle search.
2025-10-07T19:14-0400 | Comment by: James
I guess Cheech and Chong will be happy!