Fifth District RulesK-9 Alert on Cannabis Can’t be Sole Basis for Vehicle Search
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“Odor Plus” is New Standard for Probable Cause
Law enforcement and the courts are continuing to adjust as Florida laws change to reflect the public’s increasingly relaxed attitude toward marijuana use. The changing legal status of cannabis in Florida serves as a good illustration of how a piece of legislation is often just the starting point for how a dryly written statute is ultimately transformed by the courts into the vibrant law of the land.
When a new criminal law goes into effect, it is generally tested by appellate lawyers who argue that their client was convicted because the law is defective, or the trial judge made a mistake. When the Courts of Appeal decide these cases, they are interpreting the law to resolve novel legal issues and constitutional questions raised by the prosecution and defense.
The appellate judges’ written decisions and opinions create a body of law called case law, which ultimately becomes binding authority for future cases with similar facts or legal issues.
The Evolution of Florida Case Law on Cannabis, Marijuana: Probable Cause and Motion to Dismiss
“The incremental legalization 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.” Baxter v. State, 389 So.3d 803, 810-11 (Fla. 5th DCA 2024).
“Probable cause is a fluid concept” – Ford v. State
Until fairly recently, the question of marijuana and probable cause for a vehicle search was pretty straightforward. If, after being pulled over, pot fumes came wafting out of your car when you rolled down the window to hand your license to the state trooper, he was entitled to search you and your vehicle because pot was totally illegal. (State v. Williams, 967 So. 2d 941 (Fla. Dist. Ct. App. 2007)
That all changed on June 23, 2017, when the governor signed Statue 893.02(3), which legalized medical marijuana. Then two years later, Florida decriminalized hemp. After these developments, the legal questions got hazy.
The marijuana you smoke to get high smells exactly like the marijuana you take as medicine – and they both smell like hemp, which is now legal. And all the products come from a single source: the cannabis plant. So, to clear things up, legislators made things even more complicated by inserting language into Florida Statute 381.986 that amended the definition of “cannabis” to exclude marijuana.
Evolving Caselaw: From “Plain Smell” to “Odor Plus”
“Because the “plain smell” of cannabis is no longer clearly indicative of criminal activity, it alone cannot provide reasonable suspicion to support an investigatory detention.” – Baxter v. State
One of the first notable decisions in case law regarding the issue came in Johnson v. State, 275 So. 3d 800 (Fla. Dist. Ct. App. 2019). Jordan Johnson was pulled over at 2:00 a.m. because he had a headlight out. Officers smelled “burnt” marijuana and searched Johnson’s car. They didn’t find any marijuana, but they did find a gun. He was charged with, and convicted of, carrying a concealed weapon.
Johnson appealed, arguing that the search was illegal because he could have been a medical marijuana user (he wasn’t), and therefore the police didn’t have probable cause for a search. In 2019, the Third District Court of Appeals affirmed the trial court’s denial of a motion to dismiss, “holding that even if the driver was a medical marijuana user, this would not defeat probable cause.”
Next came a pair of district court rulings at odds with each other. State v. Ruise, 28 Fla. L. Weekly Supp. 122a (Fla. 9th Cir. Ct. Mar. 20, 2020) decided that the odor of marijuana was indeed enough probable cause for a vehicle search. But, later that year, the judge in State v. Nord, 28 Fla. L. Weekly Supp. 511 (Fla. 20th Cir. Ct. Aug. 8, 2020) ruled that a search based on odor did not meet the probable cause standard.
In 2021, the district court in Owens v. State, 317 So. 3d 1218 (Fla. Dist. Ct. App. 2021) upheld the “Odor” standard, ruling that “regardless of whether the smell of marijuana is indistinguishable from that of hemp, the smell … from a vehicle continues to provide probable cause for a warrantless search of the vehicle.”
The Florida Department of Law Enforcement’s (FDLE) top lawyer sent out guidance for officers in a bulletin called Odor Of Marijuana As Probable Cause For Warrantless Search Of A Vehicle, citing Owens and Hoehaver that said “marijuana odor emanating from a vehicle continues to provide probable cause for a warrantless search of the vehicle.”
At this point, the case law from both Johnson and Owens was “that irrespective of whether there could have been a lawful explanation, smell alone was still sufficient to constitute probable cause.”
And that’s how the law stood when, late one night in August 2021, Jacksonville Sheriff’s Officer T.W. Accra watched a car pull into the parking lot of a closed CVS store. When he walked up to the vehicle, and the driver, Jason Hassan Baxter, rolled down the window, “Accra smelled the odor or aroma of fresh marijuana.” Based on the smell, police searched the car and found marijuana. They did not initially ask Accra if he had any hemp or a medical marijuana card before they searched the car.
So, based on the Johnson and Owens case law, prosecutors felt pretty confident of getting a conviction, which they did. Acrra appealed, partly by citing the Nord case, in which a search based on smell alone was ruled invalid.
Unfortunately for Baxter, while the appeals court agreed that he had a good point with Nord, at the time of the arrest and conviction, Johnson and Owens case law were binding precedents, so they turned down the motion to suppress and the conviction stood. Nonetheless, the court said the Nord ruling that odor alone couldn’t serve as probable cause for search would be the guiding standard going forward.
The resulting case law, Baxter v. State, No. 5D2023-0118, 6 (Fla. Dist. Ct. App. Aug. 2, 2024) brought us to the “Odor Plus” standard, holding that “because it is no longer ‘immediately apparent’ that the smell of cannabis is synonymous with criminal activity, it cannot be the sole basis supporting reasonable suspicion for an investigatory detention.” But, the court said, “The smell of cannabis is a factor that may be considered under the totality of the circumstances.”
FDLE guidance for police (as of March 2024) advises officers that while the odor alone policy is still valid, “many agencies have now adopted a ‘smell plus’ standard for probable cause, requiring marijuana odor coming from the vehicle, plus some additional corroboration factor(s) to strengthen probable cause under the totality-of-circumstances rationale.”
Where We Stand (For Now)
The latest blow to the “odor alone” approach to marijuana and warrantless vehicle searches is the January 2025 case of Ford v. State, No. 5D2023-1995 (Fla. Dist. Ct. App. Jan. 7, 2025). In 2020, police in Groveland pulled over a Lyft car for speeding. When they asked the driver for permission to search the vehicle, the passenger in the back, Stephon Ford, advised in the strongest possible terms that permission to search should not be granted.
So the cops called in Polo, the drug-sniffing K-9 who quickly determined that passenger Ford probably had good reason to so actively discourage a search. Police found seven mason jars filled with marijuana, along with baggies containing crack cocaine, ecstasy and methamphetamine among Ford’s possessions. At his trial, Ford filed a Motion to Suppress all the incriminating evidence, arguing that the drug-sniffing dog that picked up the scent of marijuana had no way of telling whether it was medical marijuana, and that therefore the police did not have probable cause for a search. The judge denied the motion, and Ford was sentenced to more than five years in prison.
Ford appealed, and as in the Baxter case, the court ruled that yes, he had a valid point that K-9 Polo’s alert alone could not provide the probable cause needed to justify a warrantless search. That’s because Polo was trained to alert to a wide variety of controlled substances, including the drugs found during the search. But since one of the drugs in the car turned out to be marijuana, and the officers had no way of knowing which of the drugs Polo was reacting to, it was possible that the cannabis it was of the legal variety.
So, because “whether the substance Polo smelled was legal or illegal was not readily apparent,” the court ruled that there was no probable cause. That didn’t save defendant Ford, though, because the court upheld the validity of the search based on the good faith exception to the Exclusionary Rule.
And that’s why, as of January 2025, the smell of cannabis alone cannot be the basis for a vehicle search.
As the FDLE’s Office of the General Counsel reminds law enforcement officers, “case law is subject to change and provisions and authorities may vary over time and by particular jurisdiction.”
