Tag: Florida medical marijuana

Citing the U.S. Constitution’s Fourth Amendment protections against unreasonable searches and seizures, the appeals court backed away from what it described as a “plain smell doctrine” related to cannabis.

“In light of significant legislative amendments to the definition and regulation of cannabis, its mere odor can no longer establish that it is ‘immediately apparent’ that the substance is contraband,” Judge Nelly Khouzam wrote in an opinion fully joined by nine other judges. “Accordingly, the plain smell doctrine can no longer establish probable cause based solely on the odor of cannabis. Rather, we now align the Fourth Amendment analysis for cannabis with the test that applies to other suspected contraband, such that its odor is a valid factor to be considered along with all others under the totality of the circumstances.”

Three other judges wrote or joined concurring opinions, including Judge J. Andrew Atkinson, who wrote that what is “pertinent to the resolution of this case on its facts is that an officer who smells either raw cannabis or the smoke from burnt or burning cannabis has encountered an odor that is no more likely to be indicative of criminal activity than licit use of a legal substance. On this record and under the statutes as they currently read, that smell, in isolation, does not give rise to probable cause to justify a search.”

But Judge Craig Villanti, in a dissent joined by Judge Anne-Leigh Gaylord Moe, wrote that changes over the past decade to allow medical marijuana and hemp products “did not wholesale decriminalize the possession of marijuana.” Villanti pointed to safety concerns about people driving while impaired by cannabis.

“People who traverse our Florida highways are entitled to share the roads with sober and safe drivers,” Villanti wrote. “The majority interpretation of the law and wholesale erosion of well-developed, reasonable Fourth Amendment analysis will only undermine the evolved public expectation that law enforcement will continue to protect them as they motor along Florida’s highways.”

The Hillsborough County case stemmed from law-enforcement officers in 2023 stopping a car in which Darrielle Ortiz Williams was a passenger. Officers smelled cannabis and searched the car, finding bags that included cannabis.

Williams, who was on probation at the time, also was found to have a drug known as “molly” in a plastic bag in a sock. A circuit judge found that Williams had violated probation. That led to the appeal, which was considered by the full appellate court.