Florida’s 2nd District Court of Appeal has ruled that police can no longer search vehicles solely based on the smell of marijuana, citing constitutional protections and the state’s evolving cannabis laws.
The court overturned its own 2021 precedent, saying legislative changes — including Florida’s medical marijuana program and the legalization of hemp — mean the odor of marijuana is no longer automatically evidence of a crime. Judge Nelly Khouzam, writing for the majority and joined by nine other judges, said the “plain smell doctrine” is no longer valid on its own but may still be considered along with other factors under the Fourth Amendment’s “totality of circumstances” test.
Concurring opinions stressed that marijuana odor is just as likely to come from legal use as illegal activity. Judge J. Andrew Atkinson wrote that smell alone “does not give rise to probable cause to justify a search.”
A dissent from Judge Craig Villanti, joined by Judge Anne-Leigh Gaylord Moe, argued the ruling undermines public safety, particularly on highways where drivers may be impaired by marijuana. Villanti said medical marijuana and hemp laws did not “wholesale decriminalize” possession and urged lawmakers or the Florida Supreme Court to step in.
The case involved a 2023 traffic stop in Hillsborough County where officers searched a vehicle after smelling marijuana. Passenger Darrielle Ortiz Williams, who was on probation, was found with marijuana and MDMA. While the appeals court shifted its stance, it did not suppress the evidence in Williams’ case because police relied on existing precedent at the time of the search.
The ruling brings the Tampa Bay-area court in line with a 2024 decision by the 5th District Court of Appeal and certified the issue as one of “great public importance” for the Florida Supreme Court to decide.
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