Odor of Cannabis and Probable Cause in Florida

 Odor of Cannabis in Florida

"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."

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT  

EVANS JOSHUA OWENS, ) ) Appellant, ) ) 

v. ) Case No.  2D20-537 ) STATE OF FLORIDA, ) ) 

Appellee. ) ) 

Opinion filed March 31, 2021.  

Appeal from the Circuit Court for Hillsborough County; Kimberly K. Fernandez, Judge. 

Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant. 

Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee. 

VILLANTI, Judge.

 

Evans Joshua Owens challenges his judgment and sentence following his guilty plea to the offense of possession of methamphetamine.  He argues that the trial court erred in denying his preserved, dispositive motion to suppress.  Owens argues, in 

pertinent part, that the search of his vehicle was based solely on the odor of marijuana and that because possession of marijuana in some instances, and hemp in all instances, has been legalized in Florida, 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.  We reject this argument and affirm Owens' judgment and sentence.  

We are aware of the decision of the Twentieth Judicial Circuit Court of Florida that held that the smell of marijuana in connection with a traffic stop cannot constitute the sole basis supporting probable cause for a search.  See State v. Nord, 28 Fla. L. Weekly Supp. 511 (Fla. 20th Cir. Ct. Aug. 8, 2020). With all due respect to the capable and experienced circuit judge who authored that opinion, we cannot agree.  Instead, we hold that an officer smelling the odor of marijuana has probable cause to believe that the odor indicates the illegal use of marijuana.  Accordingly, to the extent that it conflicts with this decision, we disapprove of Nord and adopt the opinion of the Ninth Judicial Circuit of Florida in State v. Ruise, 28 Fla. L. Weekly Supp. 122 (Fla. 9th Cir. Ct. Mar. 20, 2020) (holding that an officer who smelled the odor of marijuana during a traffic stop had probable cause for a warrantless search of the vehicle, even though the odor of cannabis was found to be indistinguishable from the odor of now legal hemp). 

We also note that, in this case, the officer was responding to a complaint of reckless and erratic driving; and Owens' odd and erratic responses to the officer's attempts to communicate with him, coupled with the smell, caused the officer to reasonably conclude that Owens should not be "behind the wheel of a vehicle."  Thus, the circumstances supported the officer's conclusion that he had probable cause to 

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detain Owens and to search his vehicle.1  Finally, we note that even if marijuana was legalized for recreational use, such use while driving would still support the offense of driving while intoxicated; thus, regardless of whether marijuana becomes decriminalized for recreational use, the smell of the burning substance will continue to provide probable cause for a search of a vehicle.  See Johnson v. State, 275 So. 3d 800, 802 (Fla. 1st DCA 2019) ("[E]ven if smoking marijuana were legal altogether, the officers would have probable cause based on the fact that Johnson was operating a car." (citing § 316.193(1)(a), Fla. Stat. (2018))).2  "The probable cause standard, after all, is a 'practical and common sensical standard.'  It is enough if there is the 'the kind of fair probability' on which 'reasonable and prudent people, not legal technicians, act.' " Id. (quoting Florida v. Harris, 568 U.S. 237, 244 (2013)).  

We recognize that there may be a circumstance where an occupant of a vehicle may have a legitimate explanation for the presence of the smell of fresh (not burning or burnt) marijuana in the vehicle, such as where the individual has a lawful prescription for it, or that the substance is, in fact, hemp.  But even the current version of section 381.986, which permits qualified physicians to prescribe the smoking of marijuana as "an appropriate route of administration for a qualified patient," see § 381.986(4)(c),3 continues to prohibit the use of smoked marijuana in vehicles, see 1 As Owens exited the vehicle, the officer saw a plastic bag in plain sight containing a crystal-like substance that was later proven to be methamphetamine. 2

We are confident that in the event marijuana becomes legal for recreational use in Florida, the legislature will amend the statutes pertaining to driving while intoxicated accordingly

. 

3As amended by ch. 2019-1, Laws of Florida. 

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§ 381.986(1)(j)5 (providing that "medical use" of marijuana does not include use of marijuana on any form of public transportation; in any public place; or on a school bus, vehicle, aircraft, or motorboat "except for low-THC cannabis not in a form for smoking" (emphasis added)).  Cf. Johnson, 275 So. 3d at 802 (holding that even if the driver was a medical marijuana user, this would not defeat probable cause).  

We concede, without affirmatively holding, that such a circumstance (such as where the individual has a lawful prescription or that the substance is hemp) might provide an affirmative defense to a charge of a criminal offense, but it would not prevent the search. Nevertheless, we can think of no circumstance where an affirmative defense might lie where the impetus for the search arose from the smell of burnt marijuana in a vehicle.  

Accordingly, we conclude 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. See, e.g., State v. Brookins, 290 So. 3d 1100, 1104 (Fla. 2d DCA 2020) ("Our supreme court has observed that the odor of burnt marijuana emanating from a vehicle—like we have here—provides probable cause to search each of the vehicle's occupants." (citing State v. Betz, 815 So. 2d 627, 633 (Fla. 2002))); accord Johnson, 275 So. 3d at 802. 

Affirmed. 

SLEET and SMITH, JJ., Concur. 

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