As voters and lawmakers continue the trend of relaxing Marijuana laws across Florida, a contentious debate has evolved surrounding the drug’s fourth amendment implications. Now that some uses of marijuana are legal, the question is whether a police officer smelling marijuana coming from your vehicle is enough to justify a search of the car. For now, the consensus is yes, the odor of Marijuana is enough evidence for the cops to search your vehicle.
The issue is decidedly more complex, striking at the heart of a decades-raging fourth amendment debate over what evidence is necessary to permit a warrantless search. Each case is different and an experienced Miami criminal law attorney should be consulted if possession of marijuana charges, or possession of marijuana with intent to distribute charges are filed against you.
A Fourth Amendment Issue
Under Florida law and in line with the fourth amendment, the general rule is that an officer must have at least an objectively reasonable basis for suspecting criminal activity is afoot before conducting a warrantless search.
Until recently, all forms of Marijuana were illegal in Florida. This made for relatively easy police work and a clear fourth amendment policy: if police smell marijuana coming from your vehicle, they can search it. For decades, this stood unchallenged.
The problem arose with the legalization of hemp, CBD, and medical THC. CBD and Hemp are both derived from the same plant as illegal cannabis, and both look and smell the same as cannabis. Someone smelling marijuana would have no way of determining whether the scent was legal hemp, or illegal cannabis. When the Florida legislator legalized hemp in 2019, police could no longer rely on their sense of smell to determine whether illegal activity was taking place. In 2019 and 2020, criminal defense attorneys were poised to argue that searches stemming from the odor of marijuana should be ruled unconstitutional.
Florida Law: A Changing Tide
Following the 2019 legalization of hemp, Miami and Florida law enforcement agencies and State Attorney’s adopted an “Odor Plus” standard. Under the new standard, cops were forced to detect the odor of marijuana, plus another indicator of illegal activity to overcome the probable cause standard and search a vehicle.
Across Florida, defense attorneys began arguing that arrests stemming from the odor of marijuana should be dropped for lack of probable cause under the fourth amendment. In 2020, Florida courts were split on the issue. The Twentieth Judicial Circuit Court of Florida held in August of 2020 that marijuana odor alone cannot be the sole basis for a probable cause search. See State v. Nord, 28 Fla. L. Weekly Supp. 511 (Fla. 20th Cir. Ct. Aug. 8, 2020 ). Just three months prior, the Ninth Judicial Circuit of Florida found differently, holding that an officer who smelled marijuana during a traffic stop had probable cause to conduct a warrantless search. State v. Ruise, 28 Fla. L. Weekly Supp. 122 (Fla. 9th Cir. Ct. Mar. 20, 2020).
Can Police Search Your Car Based on the Odor of Marijuana in 2021?
While this area of law is still expanding, the answer is yes, as of March 2021, police can search your car if they smell burnt marijuana. The Second District Court of Appeals held that the recent legalization of hemp was not enough to overcome the precedent of permitting warrantless searches based on the odor of marijuana.
Each case is unique, and this area of law is continuously evolving. An experienced Miami criminal trial attorney should be consulted to spot the potential weaknesses in the case against you.