Is the odor of burnt marijuana probable cause to search a vehicle?
Odor of Cannabis Shenanigans Case – Motion to suppress evidence denied where weed discovered in defendant’s vehicle during a traffic stop after law enforcement detected the odor of burnt marijuana. Court calls shenanigans on argument that because the state has medical marijuana, the smell of weed coming from a vehicle no longer provides law enforcement with probable cause to conduct search without warrant. Was reasonable for an officer to conclude that defendant smelling of marijuana, was acting unlawfully says Florida DCA.
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
STATE OF FLORIDA,
On appeal from the Circuit Court for Leon County.
Robert E. Long, Judge.
July 9, 2019
Jordan Johnson appeals his conviction for carrying a
concealed weapon. His only argument on appeal is that the trial
court should have granted his motion to suppress. We reject this
argument and affirm.
Officers initiated a 2:00 a.m. traffic stop after noticing a
headlight out on Johnson’s car. Officers then smelled burnt
marijuana, detained Johnson, and searched the car. Inside the car,
they found the gun that led to the charge.
On appeal, Johnson acknowledges “the long line of cases that
hold that the smell of burnt marijuana coming from a vehicle
provides an officer with probable cause to detain the defendant and
conduct a warrantless search.” Init. Br. at 8 (citing State v. T.P.,
835 So. 2d 1277 (Fla 4th DCA 2003); State v. Williams, 967 So. 2d
941 (Fla. 1st DCA 2007); State v. Jennings, 968 So. 2d 694 (Fla.
4th DCA 2007)); see also State v. Betz, 815 So. 2d 627, 633 (Fla.
2002) (“As the odor of previously burnt marijuana certainly
warranted a belief that an offense had been committed, this
unquestionably provided the police officers on the scene probable
cause to search the passenger compartment of the respondent’s
vehicle.”). But, he contends, those cases became irrelevant after
Florida authorized medical marijuana. In other words, he argues,
while the officer’s “search based on the odor of marijuana was
constitutional prior to the enactment of [§ 381.986, Fla. Stat.], now
that medical marijuana is legal, it is no longer a sufficient basis for
probable cause.” Init. Br. at 7. He does not argue that he is a
medical-marijuana user; his argument is that the smell alone is no
longer enough since someone might be a medical-marijuana user.
There are several problems with this argument. First, as the
State notes, at the time of the stop, Florida’s medical-marijuana
laws did not authorize smokable marijuana, see § 381.986(1)(j)(2),
Fla. Stat. (2017) (excluding from “medical use” the “use, or
administration of marijuana in a form for smoking”), and the
officers smelled burnt marijuana. Second, Florida law did not
allow use in “a vehicle” other than “for low-THC cannabis.” Id.
§ 381.986(1)(j)(5)(b). Third, although Florida law does not
criminalize all use of medical marijuana, possession of marijuana
remains a crime under federal law. See 21 U.S.C. § 812(c); see also
Gonzales v. Raich, 545 U.S. 1, 27 (2005) (noting that federal
controlled substance act “designates marijuana as contraband for
any purpose; in fact, by characterizing marijuana as a Schedule I
drug, Congress expressly found that the drug has no acceptable
medical uses”). Fourth, even if smoking marijuana were legal
altogether, the officers would have had probable cause based on
the fact that Johnson was operating a car. See § 316.193(1)(a), Fla.
Stat. (criminalizing driving under the influence of drugs).
Finally, even putting all of this aside, the possibility that a
driver might be a medical-marijuana user would not automatically
defeat probable cause. The probable cause standard, after all, is a
“practical and common-sensical standard.” Florida v. Harris, 568
U.S. 237, 244 (2013). It is enough if there is “the kind of ‘fair
probability’ on which ‘reasonable and prudent people, not legal
technicians, act.” Id. (some marks omitted). Here, we cannot say
that it would be unreasonable for an officer to conclude there is a
fair probability that someone driving around at 2:00 a.m., smelling
of marijuana, is acting unlawfully. And this is true whether or not
Florida law allows the medical use of marijuana in some
In short, Johnson has not shown that the trial court’s order
denying suppression—an order that comes to us “clothed with a
presumption of correctness,” Terry v. State, 668 So. 2d 954, 958
WETHERELL, WINOKUR, and M.K. THOMAS, JJ., concur.
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
Andy Thomas, Public Defender, and Megan Long, Assistant Public
Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Damaris E. Reynolds and
Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for