Though several states have adopted laws that allow recreational marijuana use, Florida is not one of them. This means it is still illegal for individuals to be in possession of marijuana without a valid medical prescription. But does that give police officers the right to conduct a warrantless search in your vehicle if they believe they smell a marijuana odor?
In this post, the Tampa criminal defense attorneys at Buda Law will explain whether or not a police officer has probable cause to search your car if they smell the odor of marijuana.
What is Probable Cause?
Under the Fourth Amendment, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Essentially, this means that police cannot conduct a search without a search warrant unless there is probable cause to believe that criminal activity is taking place. Probable cause essentially means that there are reasonable grounds to believe that some kind of illegal activity was taking place at the moment.
Can Police Search My Car if They Smell Marijuana?
Florida law is a bit hazy when it comes to whether or not police can conduct a warrantless search if they smell marijuana emanating from a vehicle. With the passing of the Farm Bill in 2018, a number of cannabis-derived products became federally legal as hemp was removed from the definition of marijuana in the Controlled Substances Act.
Prior to this bill, if the police smelt marijuana coming from you or your car during a traffic stop, they were allowed to search the entire car based on the probable cause of there being marijuana in the car. It did not matter whether they smelled marijuana that has been smoked and is lingering in the clothing of a passenger or if it is fresh unburnt marijuana, they were legally able to search the car. However, with new legislation in place allowing legal hemp, the smell of marijuana alone does not necessarily imply any criminal behavior has taken place because the two cannot be distinguishable by smell. So what does this mean?
Originally, state prosecutors determined that smell alone was no longer enough to warrant a search or otherwise prosecute a defendant. That is, of course, until cases started reaching the appellate court and the rulings began to indicate once again that smell alone was enough. We’ll highlight some key cases below.
State v. Ruise
In State v. Ruise, 28 Fla. L. Weekly Supp. 122 (Fla. 9th Cir. Ct. Mar. 20, 2020), the judge held that police officers do have probable cause to search a vehicle based on the smell of marijuana alone, even despite the fact that the smell may be indistinguishable from that of hemp. This is because while one (hemp) is legal, the other (marijuana) is not, and as long as recreational marijuana is illegal in Florida, police officers have the right to search a vehicle based on the odor of marijuana and/or hemp alone.
Owens v. State
In Owens v. State, 46 Fla. L. Weekly D699, slip op.1 (Fla. 2d DCA Mar.
31, 2021), appellant Evans Joshua Owens brought his case before the Second District Court of Appeal after being found guilty of the possession of methamphetamine. Owens argued that the search of his vehicle (of which led to the identification of the methamphetamine) was originally based on the smell of marijuana and that because of the recent legalization of hemp products, the odor of marijuana is no longer sufficient for probable cause. However, Florida courts held 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.”
Hatcher v. State
In Hatcher v. State, 342 So.3d 807 (2022), Mark Eugene Hatcher was pulled over and his car searched because the officer smelled marijuana. This search uncovered methamphetamine and drug paraphernalia which led to his arrest. Hatcher, like Owens, argued that because the smell could have come from legal hemp rather than illegal cannabis, the drugs found should not be admissible in court because the officer lacked probable cause to conduct a search. However, because other circumstances were present, such as erratic driving and the strange demeanor of the driver, the court held that the officer did in fact have probable cause to conduct the search.
What are the Penalties for Marijuana Possession in Florida?
The penalties for possession of marijuana in Florida depend on how much of the substance the defendant is found with. We’ll provide a chart outlining the different threshold amounts and their maximum punishment below.
| Offense | Classification | Maximum Sentence | Maximum Fine |
| ≤ 20 grams | Misdemeanor | 1 year | $1,000 |
| 20 grams – 25 lbs | Felony | 5 years | $5,000 |
| 25 lbs – 2000 lbs | Felony | 15 years | $25,000 |
| 2000 lbs – 10,000 lbs | Felony | 30 years | $50,000 |
| > 10,000 lbs | Felony | 30 years | $200,000 |
* ≤ – less than or equal to * > – greater than
What Should I Do if Police Find Weed in My Car?
If the police find marijuana in your car during a traffic stop, it is important to remain calm and cooperative. Do not resist or argue with the officers, as this may only worsen your situation. Instead, comply with their requests and provide them with your identification and vehicle registration.
It is also important to remember that you have the right to remain silent and the right to an attorney. Exercise these rights and do not make any statements to the police without first consulting with a Tampa criminal defense attorney like Andrew Buda. Even seemingly innocuous statements could be used against you in court, so it is best to let your attorney handle all communication with law enforcement. Your attorney can help you understand your legal options and work to build a strong defense on your behalf, which could potentially lead to a reduction or dismissal of your charges.
If You’ve Been Charged With Marijuana Possession, Call Tampa Drug Crime Attorney Andrew Buda Right Away
With so many conflicting opinions and new laws in place, it can be difficult to know the answer of whether or not police can conduct warrantless searches based on the smell of marijuana alone. However, as of right now, police can subject your vehicle to a search without a warrant if they detect the smell of marijuana. If this has happened to you and you were arrested for being in possession of marijuana, you need the help of a skilled Tampa drug crime defense attorney like Andrew Buda of Buda Law.
Attorney Andrew Buda has a number of successful criminal cases under his belt, and he knows what it takes to advocate fiercely on your behalf. For a criminal defense attorney you can trust, call 813-322-2832 or contact us online today.