Marijuana Smell Alone is Back! Marijuana Enforcement in Florida - A Haze of Confusion - Part 2

Once again, at the intersection of illegal cannabis, legal hemp, and medical marijuana Florida is in a haze of legal confusion.

We wrote extensively on the 2019 changes in the law that made Cannabidiol (CBD) legal in Florida.  Medical Marijuana has been legal in Florida since 2017.  See Marijuana Enforcement in Florida - A Haze of Confusion.

Cannabis in any form having a total delta-9-tetrahydrocannabinol (THC) concentration that exceeds 0.3 percent on a dry-weight basis continues to be illegal in Florida.

What was the Confusion?

The “Haze of Confusion” was that police could traditionally conduct a search and then make an arrest based on the smell of marijuana alone.  

The problem was that legal CBD is indistinguishable from illegal cannabis based on plain view or plain odor alone.  Hemp and cannabis are both derived from the same plant (Cannabis Sativa), they look, feel, and smell the same, and both substances can be smoked in plant, oil, or wax forms.  There was no definitive probable cause arrest standard.

Law enforcement and local State Attorney’s Offices created new standards to conduct a search based on the new legality of CBD including what is referred to as the “Odor Plus” standard - meaning that law enforcement would require the odor of marijuana PLUS some other indicator of illegal activity as “smell alone” was deemed to be not enough to conduct a search or to make an arrest.

The Smell Alone is Back!

While these previous evolving standards of “Odor Plus” were good for criminal defendants and criminal defense attorneys representing clients accused of possession of marijuana, the Second District Court of Appeals has recently made a ruling that allows law enforcement to once again use “smell alone” as probable cause to conduct a search and subsequently make an arrest.

In Owens v. State of Florida, the Second District Court of Appeals (which is the controlling Appeals Court for the Tampa Bay region) rejected the argument that the odor of marijuana can no longer serve as the basis for probable cause to search a vehicle because the odor of marijuana cannot be distinguished from that of hemp.

The Second District Court of Appeals reasoned that “an officer smelling the odor of marijuana has probable cause to believe that the odor indicates the illegal use of marijuana.”

The Court reasoned that Florida Statute §381.986 does not allow those with a valid prescription for medical marijuana to smoke it in vehicles or in public places, thus the smell alone on a vehicle stop would provide probable cause for a search.  The Court allowed that possession of legal CBD (hemp) may provide an affirmative defense, but would not prevent a search by law enforcement.

The Court concluded, “that the recent legalization of hemp, and under certain circumstances marijuana, does not serve as a sea change undoing existing precedent, and we hold that regardless of whether the smell of marijuana is indistinguishable from that of hemp, the smell of marijuana emanating from a vehicle continues to provide probable cause for a warrantless search of the vehicle.”