Does the Smell of Marijuana Justify a Search of Your Car in Florida?

During a traffic stop, Florida law enforcement officers are always on the lookout for anything that might suggest the driver is guilty of something other than running a red light. Of course, the police cannot simply search your vehicle without consent or place you under arrest without probable cause. Probable cause, in turn, requires the officer to show that there are sufficient facts such that a “reasonable” person would believe there has been an actual crime.

Appeals Court: Gun May Be Used as Evidence

Historically, one way that an officer could establish probable cause to conduct a warrantless search of a vehicle was the smell of marijuana. After all, marijuana has long been a controlled substance subject to criminal penalties even for simple possession. In recent years, however, Florida has somewhat liberalized its marijuana laws. It is now legal for authorized persons to possess and use medical marijuana as well as hemp.

This has led a number of Florida courts to reconsider whether or not the “smell of marijuana” alone can justify a warrantless search. Just recently, the Florida Fourth District Court of Appeal considered such a case. Here, law enforcement initiated a traffic stop of the defendant because he was obstructing traffic. Upon approaching the vehicle, the arresting officer “detected the odor of fresh marijuana.” He also saw a “clear plastic bag containing a green leafy substance” on the center console. This prompted the officer to conduct a warrantless search.

This search uncovered a firearm. Because the defendant had a prior felony conviction, he was arrested and charged with possession of a firearm by a convicted felon. At trial, the defendant moved to suppress the gun, arguing the officer lacked probable cause to search his vehicle based on the odor of marijuana. The judge granted the motion. The state then appealed that ruling.

The Fourth District reversed the trial court and held the firearm could be used as evidence at trial. The appellate court said that even if the smell of marijuana was insufficient to create probable cause, the presence of the bag of fresh marijuana in plain view was. The defendant argued that he had a medical marijuana card, so it was legal for him to possess the fresh marijuana. The Fourth District rejected that argument, however, noting that under Florida law, medical marijuana must be dispensed in “distinct packaging” and remain in that original packaging at all times. In other words, even if the defendant had a legitimate prescription for medical marijuana, by taking it out of the original packaging and putting it in a clear plastic bag, he was still committing a crime.

Contact Asilia Law Firm Today

Remember, anytime you are pulled over on what appears to be a routine traffic violation, you do not have to volunteer any information to the police aside from your name, driver’s license, and vehicle registration. You do not have to answer any questions about where you have been or where you are going. And you do not have to consent to a warrantless search of your vehicle.

If a traffic stop does lead to your arrest, remember that you also have the right to work with a qualified Miami criminal attorney. Contact Asilia Law Firm today to schedule an initial consultation with a member of our team.

Source:

4dca.flcourts.gov/content/download/2170973/opinion/Opinion_2023-1460.pdf