Legal Analysis: Florida Appeals Court Revisits Drug Dog Alerts in Warrantless Vehicle Searches

In a recent decision by the Fifth District Court of Appeal in Stephon Ford v. State of Florida, Case No. 5D2023-1995, the court addressed a pressing issue in Florida law: whether a drug-sniffing dog’s alert can establish probable cause for a warrantless vehicle search when the dog cannot differentiate between legal and illegal cannabis products. This case provides critical insights into the evolving intersection of drug laws, Fourth Amendment protections, and the application of the good faith exception.

Is a K-9’s Sniff Enough? Understanding Florida Search Laws

“My car was searched after a K-9 alert in Florida, and they found legal CBD. Is that a legal search?”

“In light of recent Florida appellate court decisions, particularly Stephon Ford v. State of Florida and Baxter v. State, an undifferentiated K-9 alert that doesn’t distinguish between legal and illegal cannabis may not provide sufficient probable cause for a warrantless vehicle search. If you’ve experienced this, it’s vital to understand your Fourth Amendment rights. Contact us for a free consultation regarding your Florida K-9 car search and potential illegal search.”

#FloridaK9CarSearch #FourthAmendmentRights #IllegalSearch #StephonFordvStateofFlorida #BaxtervState #ProbableCause

“What is the ‘good faith exception’ in a Florida drug dog search case, and how does it affect me?”

“The ‘good faith exception’ allows evidence obtained under a search to be admissible if officers relied on then-binding legal precedent, even if that precedent is later overturned. In Stephon Ford, the court applied this exception. Understanding how this affects your drug dog search 4th amendment case is crucial. We can analyze if the good faith exception applies to your specific situation.”
Keywords: #DrugDogSearch4thAmendment #GoodFaithException #StephonFordCase #FloridaDrugDogSearch #ExclusionaryRule

“How has the legalization of medical marijuana in Florida impacted K-9 searches?”

“The legalization of medical marijuana and hemp has significantly complicated K-9 searches. Courts are now questioning if a K-9 alert alone can establish probable cause, as dogs can’t differentiate between legal and illegal cannabis. This change impacts your Florida drug dog case and requires a knowledgeable attorney to navigate the complexities.”
Keywords: #FloridaDrugDogCase #MedicalMarijuana #K9Search #ProbableCause #LegalCannabis

“What should I do if a drug-sniffing dog alerted to my vehicle in Florida?”

“If a drug-sniffing dog alerted to your vehicle, do not consent to a search without legal counsel. Remain calm, document everything, and contact an attorney immediately. Your drug dog search 4th amendment rights need to be protected. We can help ensure your rights are upheld.”
Keywords: #DrugDogSearch4thAmendment #FloridaVehicleSearch #K9Alert #LegalCounsel #ProtectYourRights

“Can a K-9 alert be the sole basis for a warrantless car search in Florida anymore?”

“Recent court decisions, like Stephon Ford, suggest that a K-9 alert alone may no longer be sufficient for a warrantless car search, especially if the dog can’t distinguish between legal and illegal substances. This is a critical development for drug dog search 4th amendment cases in Florida. We can assess the legality of your search.”
Keywords: #DrugDogSearch4thAmendment #WarrantlessCarSearch #StephonFordCase #ProbableCause #FloridaLegalPrecedent

“What is the ‘plain smell’ doctrine, and how does it relate to K-9 searches in Florida?”

“The ‘plain smell’ doctrine, akin to ‘plain view,’ suggests that if an officer smells contraband, it can justify a search. However, with the legalization of cannabis, this doctrine is being challenged. In Baxter v. State, the court held that the ‘plain smell’ of cannabis alone might not justify a search. This directly affects Florida K-9 car searches. We can help you understand how this impacts your case.”
Keywords: #FloridaK9CarSearches #PlainSmellDoctrine #BaxtervState #WarrantlessSearch #Contraband

“What training standards are required for drug-sniffing dogs in Florida, and do they impact my case?”

“Drug-sniffing dogs must be well-trained and certified. However, if the dog can’t differentiate between legal and illegal substances, its reliability is questioned. The adequacy of the K-9’s training can be a crucial factor in your Florida drug dog case. We can investigate the training records and certifications of the K-9 involved in your search.”
Keywords: #FloridaDrugDogCase #K9Training #DrugSniffingDogs #Certifications #LegalSubstances

“How do I challenge the legality of a K-9 search in Florida?”

“Challenging a K-9 search involves filing a motion to suppress evidence, arguing that the search violated your Fourth Amendment rights. We can help you gather evidence, analyze the legality of the search, and represent you in court to protect your drug dog search 4th amendment rights.”
Keywords: #DrugDogSearch4thAmendment #MotionToSuppress #IllegalK9Search #FloridaCourt #Evidence

“What are the implications of the Stephon Ford decision for future K-9 searches in Florida?”

“The Stephon Ford decision signals a shift in how Florida courts view K-9 alerts. Future searches may require additional evidence beyond a mere K-9 alert to establish probable cause. This is a significant change for Florida K-9 car searches. We can help you understand these changes and how they impact your case.”
Keywords: #FloridaK9CarSearches #StephonFordDecision #ProbableCause #WarrantlessSearch #LegalImplications

“Why do I need an experienced attorney for a Florida drug dog search case?”

“Navigating the complexities of Fourth Amendment law and recent court decisions like Stephon Ford requires an experienced attorney. We understand the nuances of Florida drug dog cases and can provide the legal expertise needed to protect your rights and achieve the best possible outcome. Contact us for a consultation today.“
Keywords: #FloridaDrugDogCases #ExperiencedAttorney #FourthAmendment #StephonFord #LegalExpertise

Drug Dog Case Background

The incident stemmed from a traffic stop in Lake County, Florida, in September 2020. Corporal Christie of the Groveland Police Department stopped a Lyft vehicle for speeding and non-functional tag lights. Stephon Ford, the passenger in the rear seat, became the subject of scrutiny when K-9 Polo, a drug-sniffing dog, alerted to the vehicle. Upon searching the car, officers found multiple controlled substances, including marijuana, cocaine, and methamphetamine, in a bag belonging to Ford.

Ford moved to suppress the evidence, arguing that K-9 Polo’s alert did not provide probable cause for the search because the dog could not distinguish between THC in illegal marijuana and legal medical marijuana or hemp. The trial court denied his motion, prompting this appeal.

Key Legal Questions

The court considered two main questions:

1. Does an undifferentiated alert from a drug-sniffing dog establish probable cause for a warrantless vehicle search?
2. Does the good faith exception apply when the search relied on then-binding legal precedent?

Probable Cause and K-9 Alerts

Traditionally, courts have upheld that alerts by trained drug-sniffing dogs establish probable cause for vehicle searches. However, the increasing legalization of medical marijuana and hemp has complicated this precedent. THC, the psychoactive component of cannabis, is present in varying concentrations in both legal and illegal cannabis products.

In its analysis, the Fifth District noted the following:

• K-9 Polo was well-trained and certified to detect controlled substances, including marijuana, cocaine, and methamphetamine.
• Polo’s alerts did not distinguish between legal and illegal substances, making it impossible for officers to determine the legality of the source substance based solely on the alert.
• The court referenced its 2024 decision in Baxter v. State, which held that the “plain smell” doctrine, whether applied to human officers or K-9s, cannot justify a warrantless search when the detected odor could originate from legal sources.

The court concluded that K-9 Polo’s alert alone could not supply probable cause for a warrantless search under the totality of the circumstances. However, the legal analysis did not end there.

The Good Faith Exception

Despite finding the search lacked sufficient probable cause, the court upheld the denial of Ford’s motion to suppress under the good faith exception to the exclusionary rule. At the time of the search in 2020, Florida precedent supported the use of drug-sniffing dog alerts as a sole basis for probable cause.

The court explained:

• The officers relied on then-binding precedent, which had not yet been overruled or clarified by cases like Baxter.
• The exclusionary rule aims to deter police misconduct. Since the officers acted in objectively reasonable reliance on existing law, suppressing the evidence would serve no deterrent purpose.

Implications of the Decision

This decision marks a pivotal moment in Florida’s legal landscape, particularly in how probable cause is evaluated in light of evolving cannabis laws. Key takeaways include:

• Future Challenges: K-9 alerts may no longer suffice as sole probable cause for warrantless vehicle searches if the substance detected could be legal.
• Good Faith Exception: Evidence obtained under previously valid legal interpretations may still be admissible, even if those interpretations later change.
• Training Adjustments: Law enforcement agencies may need to refine drug-sniffing dog training to address the challenges posed by legalized cannabis.

Final Thoughts

The Stephon Ford case underscores the dynamic nature of Fourth Amendment jurisprudence and its intersection with state-specific drug laws. As the legal framework continues to adapt to changes in cannabis regulation, both law enforcement and the courts must carefully balance public safety concerns with constitutional protections.

If you are facing charges stemming from a search involving a drug-sniffing dog or questions about your Fourth Amendment rights, contact an experienced criminal defense attorney. Legal representation can make a critical difference in protecting your rights and navigating the complexities of Florida law.

For more updates on legal developments, follow our blog or contact us today for a consultation.

Complete Opinion of the Court:

FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Case No. 5D2023-1995
LT Case No. 2020-CF-002312-A
_____________________________
STEPHON FORD,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Lake County.
Larry Metz, Judge.
Asad Ali, of Mandell Law, P.A., Orlando, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
January 7, 2025
EDWARDS, C.J.
Is the undifferentiated alert behavior of a properly trained police drug-sniffing dog sufficient to supply the sole probable cause for a warrantless search of a car, when that K-9 officer, while
2
trained to alert to THC1 among other substances, cannot distinguish between illegal pot and legal medical marijuana or hemp? In other words, is that sniff up to snuff?2 Going forward, that dog won’t hunt. Nevertheless, we affirm the trial court’s denial of the motion to suppress based on application of the good faith exception. Stephon Ford (“Appellant”) appeals the denial of his motion to suppress drug evidence found during the search of a Lyft vehicle following a routine traffic stop in September 2020. Appellant asserts that the trial court erred in denying the motion to suppress, arguing that the search of the vehicle was unlawful because the drug dog used in this case cannot differentiate between illegal
marijuana and legal medical marijuana or hemp. This Court has jurisdiction. Fla. R. App. P. 9.140(b)(2)(A)(i).

Facts

The following facts were developed during the evidentiary hearing held on April 1, 2022, in connection with Appellant’s motion to suppress. Corporal (“Cpl.”) Christie of the Groveland Police Department stopped the Lyft vehicle because it was going sixty-four (64) miles per hour in a fifty-five (55) mile per hour zone and its tag lights were not functioning.3 There was no suspicion that the Lyft driver was impaired by drugs or alcohol. Appellant was the only rear seat passenger. The police described Appellant as nervous and agitated. Cpl. Christie requested the driver’s consent to search the car, but apparently prompted by Appellant’s advice, the driver refused. Cpl. Christie radioed in a request for
deployment of a drug detecting K-9 unit.

1 Tetrahydrocannabinol or THC is the main psychoactive
component of cannabis.
2 Florida v. Harris, 133 S. Ct. 1050, 1058 (2013).
3 There was also an officer in training in Cpl. Christie’s
vehicle.
3
Groveland Police Officer Aponte arrived on the scene in about one minute, accompanied by K-9 officer, Polo.4 Aponte explained to the occupants what was going to take place. Nobody inquired whether any of them had a medical marijuana card. Officer Aponte led Polo on a walk around the outside of the vehicle to conduct a free air sniff. Polo alerted to the presence of some illegal drugs during the first pass by trying to jump on the car and displaying rapid breathing with his nose up in the air. During the second pass, Polo stood stiff, stared, and planted himself next to the car, which was also typical of how he alerted to drugs. Officer Aponte explained that when Polo does detect drugs, his behavior changes, as described above.
After the occupants were removed from the car, the police searched the car and found seven mason jars filled with marijuana, baggies containing crack cocaine, ecstasy, and methamphetamine. The illegal substances, along with a debit card in his name, were found in Appellant’s duffle or cooler bag, located in the rear seat. The Lyft driver confirmed that Appellant was holding that bag as he entered her car.
Because the sole basis for probable cause for the warrantless search of the car was K-9 Polo alerting, during the suppression hearing, counsel explored the dog’s training and certification to serve in the role of drug detection. Officer Aponte testified that Polo received an initial six weeks of training, followed by sixteen hours each month in narcotics detection and tracking, with annual narcotics certification. Polo was trained and certified to target and detect marijuana, cocaine, heroin, and methamphetamine. Polo indicates to his handler, or alerts, that he has detected one or more of those target substances by changing behavior as he attempts to pinpoint the source. His breathing becomes rapid, and he stares at what he indicates to be the source of controlled substances.
Although not claiming to be an expert, Officer Aponte expressed his understanding that Polo alerts to the THC in marijuana. THC is present in different concentrations in various forms of cannabis, including illegal street marijuana, medical
4 Appellant does not argue that the traffic stop was itself improper or unnecessarily prolonged by summoning the K-9 unit.
4
marijuana, and hemp. Polo is not trained to differentiate between those forms of cannabis when he alerts, nor has he been trained to alert differently depending upon whether the cannabis is burnt or not. Furthermore, his behavior when alerting is the same regardless of which of the several target substances Polo detects during any particular free air sniff. Thus, Polo’s alert to illegal marijuana is indistinguishable, even to Officer Aponte, from his alert to medical marijuana or hemp, and is likewise undifferentiated from his alert to cocaine, heroin, or methamphetamines.
The State argued that a K-9’s alert even to a possibly legal substance provided probable cause for a warrantless search in reliance upon Owens v. State, 317 So. 3d 1218 (Fla. 2d DCA 2021) and Johnson v. State, 275 So. 3d 800 (Fla. 1st DCA 2019). Appellant contested whether those cases were correctly decided and their applicability to the facts here. After hearing all the testimony and considering the then-controlling case law, the trial court denied Appellant’s motion to suppress the evidence found during the search of the Lyft vehicle.
While reserving his right to appeal the denial of his dispositive motion to suppress, Appellant ultimately pled no contest to, and was convicted of, trafficking in phenethylamines and possession of marijuana and sentenced to sixty-eight (68) months in prison. It is from the denial of the motion to suppress that he timely appealed. As the trial court noted, this is a case of first impression, given that all the cases argued during the suppression hearing involved human police officers who thought they smelled marijuana, but here none of the officers mentioned the smell of any illicit substance, and we do not know which of the target substances Polo detected or alerted to.
Standard of Review
“A motion to suppress presents mixed questions of law and fact.” Evans v. State, 989 So. 2d 1219, 1221 (Fla. 5th DCA 2008). “The showing the [S]tate must make to establish probable cause for a warrantless search of a vehicle based on a drug-detection dog’s alert to the vehicle involves a trial court’s determination of the legal issue of probable cause, which [an appellate court] review[s] de novo.” Bennett v. State, 111 So. 3d 983, 983–84 (Fla.
5
1st DCA 2013) (citing Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002) (additional citation omitted)). However, an appellate court “must defer to a trial court’s findings of fact as long as the factual findings are supported by competent substantial evidence.” Bennett, 111 So. 3d at 984 (citations omitted).
Analysis
A warrantless search is generally considered per se unreasonable unless it falls within a few specifically established and well-delineated exceptions. State v. M.B.W., 276 So. 3d 501, 509 (Fla. 2d DCA 2019). The proponent of a motion to suppress carries the initial burden of establishing that a search occurred and was invalid. State v. Mobley, 98 So. 3d 124, 125 (Fla. 5th DCA 2012). Here, the record is clear that Appellant met his initial burden, proving there was neither consent nor a warrant authorizing the search; thus, the burden shifted to the State to prove that the evidence sought to be suppressed was obtained lawfully. State v. Gay, 823 So. 2d 153, 154 (Fla. 5th DCA 2002).
One exception to the warrant requirement is for searches conducted based on probable cause. Engle v. State, 391 So. 2d 245 (Fla. 5th DCA 1980). “A police officer has probable cause to conduct a search when ‘the facts available to [him] would warrant a [person] of reasonable caution in the belief’ that contraband or evidence of a crime is present.’” Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (internal citations omitted). “The test for probable cause is not reducible to ‘precise definition or quantification.’” Id. (internal citation omitted). “In dealing with probable cause, . . . as the very name implies, we deal with probabilities.” Brinegar v. United States, 69 S. Ct. 1302, 1310 (1949).
“[P]robable cause is a fluid concept––turning on the assessment of probabilities in particular factual contexts––not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 103 S. Ct. 2317, 2329 (1983). “Finely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, . . . have no place in the [determination of probable cause].” Id. at 2330. Whether the basis for probable cause is proved by machine, man, or beast, “[a]ll we have required is the kind of ‘fair probability’ on which ‘reasonable
6
and prudent [people,] not legal technicians, act.’” Harris, 133 S. Ct. at 1055.
In the past, an alert by a properly trained police dog was usually accepted as providing probable cause for a search. State v. Robinson, 756 So. 2d 249, 250–51 (Fla. 5th DCA 2000) (citing State v. Orozco, 607 So. 2d 464 (Fla. 3d DCA 1992), rev. denied, 614 So. 2d 503 (Fla. 1993); Osorio v. State, 569 So. 2d 1375 (Fla. 2d DCA 1990); and State v. Siluk, 567 So. 2d 26 (Fla. 5th DCA 1990)). The United States Supreme Court advises that “a probable-cause hearing focusing on a dog’s alert should proceed much like any other.” Harris, 133 S. Ct. at 1058.
On appeal, nobody questions K-9 Polo’s training and ability to detect and alert to the target substances listed earlier in the opinion. Given that several of the target substances (marijuana, cocaine, and methamphetamines) were found during the search of the Lyft vehicle, we do not know which substance or substances Polo detected and alerted to. However, as Appellant asserted below and on appeal, it is indeed possible that Polo alerted to the THC in the marijuana found in Appellant’s duffle bag.
Appellant argues that because Polo cannot distinguish between the THC in legal medical marijuana or hemp and illegal marijuana, his alert may be to a perfectly legally substance. “The incremental legalization of certain types of cannabis at both the federal and state level has reached the point that its plain smell does not immediately indicate the presence of an illegal substance.” Baxter v. State, 389 So. 3d 803, 810–11 (Fla. 5th DCA 2024).
Probable cause for a warrantless search is to be determined based upon the totality of the circumstances. Harris, 133 S. Ct. at 1055 (citations omitted). Here, the testimony is uncontroverted that the sole basis offered to justify the search of the vehicle was K-9 Polo’s alert to one or more of those target substances. This is truly a “plain smell” case, and there are no other circumstances to consider in determining whether probable cause for this warrantless search existed beyond what could be gleaned from Polo’s alert. The “plain smell” doctrine is a logical extension of the “plain view” doctrine. Baxter, 389 So. 3d at 809 (internal citations omitted). For probable cause to be properly based on the
7
perception of something via plain view or plain smell, its incriminating character, inter alia, must be “immediately apparent” to the percipient witness. Sawyer v. State, 842 So. 2d 310, 312 (Fla. 5th DCA 2003) (officer’s perception of a single white pill in plain view was insufficient, as incriminating nature was only appreciated once pill was seized and imprinted design was seen on closer inspection).
At the time when Polo alerted to a target substance in the Lyft vehicle, the police officers had no way of knowing whether Polo had detected an illegal substance (marijuana, cocaine, heroin, or methamphetamines) or a legal substance, namely the THC in hemp or medical marijuana that was properly prescribed and in the possession of a bona fide medical marijuana card holder. Polo was trained to alert in the same manner when he encountered any of those substances; thus, as Officer Aponte testified, the dog’s alert did not tell them which target substance(s) had been detected. Whether the substance Polo smelled was legal or illegal was not readily apparent, and thus his alert, alone, could not provide the probable cause needed to justify a warrantless search. Baxter, 389 So. 3d at 809. While no hemp or medical marijuana was found, “we do not evaluate probable cause in hindsight, based on what a search does or does not turn up.” Harris, 133 S. Ct. at 1059.
Under the facts of this case, we conclude that the police could not rely solely upon K-9 Polo’s alert to provide probable cause to justify the warrantless search of the Lyft vehicle and its contents. However, in denying Appellant’s motion to suppress, the trial court properly applied then-binding precedent, given that the sole pronouncements were not in conflict even though they came from outside our district. Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (“[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts.”). Although the trial court was correct in its analysis and ruling at the time, our recent holding in Baxter has changed the legal landscape within the Fifth District such that the plain smell––whether perceived by man or man’s best friend––of a distinct odor which may have emanated from a legal substance does not, by itself, supply probable cause to conduct a warrantless search of a vehicle. Taking Baxter into account, the trial court’s ruling is legally erroneous, and the exclusionary rule
8
would ordinarily require suppressing the evidence obtained during the search of the Lyft vehicle and its contents. However, our analysis is not yet complete.
Good Faith Exception
As noted by the United States Supreme Court, “[t]he Fourth Amendment protects the right to be free from ‘unreasonable searches and seizures,’ but it is silent about how this right is to be enforced.” Davis v. United States, 131 S. Ct. 2419, 2423 (2011). “To supplement the bare text, this Court created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation.” Id. However, that Court recognized the need for and created the “good faith” exception to the exclusionary rule for those circumstances in which police conduct a search in objectively reasonable reliance on then-binding appellate precedent which is later overruled. Id. Under those circumstances, there is no police misconduct that would be deterred; thus, evidence obtained in those circumstances will not be excluded. Id. at 2423–24.
In September 2020, when the subject traffic stop and search were conducted, the law was clear in the Fifth District that the smell alone of marijuana, detected by one trained and familiar with its odor, would provide probable cause to conduct a warrantless search of the person or vehicle from which it emanated. State v. Williams, 739 So. 2d 717, 718 (Fla. 5th DCA 1999); State v. T.T., 594 So. 2d 839, 840 (Fla. 5th DCA 1992). Similarly, in Robinson, this Court held that “[a]n alert by a properly trained police [drug-sniffing] dog provides probable cause for a search.” 756 So. 2d at 250.
Despite the advent of state legalized medical marijuana and hemp, the law in this District did not change until this Court’s recent decision in Baxter. While we could not and did not overrule Johnson or Owens,5 our conflicting opinion, Baxter, has a similar, but geographically limited effect, such that neither case is now
5 The Owens case had not yet been decided at the time the officers searched the subject car, although it was in place by the time the motion to suppress hearing was held.
9
good law in the Fifth District. That Baxter involved a human police
officer who perceived an odor while in this case it was a K-9 officer
that perceived an odor, which in both cases could have emanated
from perfectly legal sources, makes no difference here, as in both
cases it was a human who decided to conduct the warrantless
search.6
In Baxter, we determined that the officer conducting the
warrantless search did so in reasonable reliance on previously
binding case law and affirmed the trial court’s denial of Baxter’s
motion to suppress. 389 So. 3d at 813. We reach the same
conclusion here that the officers’ search of the Lyft vehicle and its
contents based solely upon Polo’s alert was consistent with thencontrolling
precedent. Thus, based on the good faith exception
articulated in Davis, we affirm the order denying Appellant’s
motion to suppress.7
AFFIRMED.
PRATT, J., concurs with opinion.
MACIVER, J., concurs in result only.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
6 In Robinson, our Court did not address issues that only arose
following Florida’s legalization of medical marijuana and hemp.
We question the durability of Robinson’s generalized holding if it
were to be applied in a set of circumstances similar to our case.
7 While our decision is irreconcilable with Owens, given the
slightly different factual situations, we do not consider the two to
be directly or explicitly in conflict.
10
Case No. 5D2023-1995 LT Case No. 2020-CF-002312-A
PRATT, J., concurring.
If the apparent smell of cannabis, standing alone, does not establish reasonable suspicion, see Baxter v. State, 389 So. 3d 803, 806, 812–13 (Fla. 5th DCA 2024) (en banc), it cannot establish probable cause, either. Of the two standards, probable cause is the more demanding one. See Baptiste v. State, 995 So. 2d 285, 291 (Fla. 2008). A failure to establish the lesser also must fail to establish the greater. And because Officer Aponte could not determine whether Polo had alerted to legal cannabis or an illicit substance, Baxter controls.
As Baxter and this appeal both show, cannabis legalization carries collateral consequences. Even though federal and state criminal laws continue to prohibit cannabis in at least some of its forms and under many circumstances,1 our court has determined that, due to recent changes in cannabis’ legal status, its odor alone no longer indicates criminal activity to the degree required for an investigatory stop (Baxter) or a full search (our decision today). These holdings have implications for law enforcement’s future interactions with drug users and traffickers.
As here, it is often the case that marijuana travels alongside other drugs and contraband. Law enforcement regularly relies on dog sniffs to locate these illicit substances. See, e.g., Florida v. Harris, 568 U.S. 237, 247–48 (2013) (chemical pseudoephedrine with intent to manufacture methamphetamine); Robinson v. State, 327 So. 3d 1276, 1277 (Fla. 1st DCA 2021) (methamphetamine and hydrocodone); State v. Robinson, 756 So. 2d 249, 250–51 (Fla. 5th
1 While hemp is now legal under both state and federal law, federal law continues to criminalize all marijuana, and Florida law allows marijuana only when for “medical use.” See Baxter, 389 So. 3d at 809–10 & n. 4 (discussing federal and state legislative developments); see also 21 U.S.C. § 802(16) (defining marijuana as a controlled substance); 21 U.S.C. §§ 841–43 (prohibited acts with respect to controlled substances).
11
DCA 2000) (cocaine); State v. Orozco, 607 So. 2d 464, 464–65 (Fla. 3d DCA 1992) (cocaine); Osorio v. State, 569 So. 2d 1375, 1376 (Fla. 2d DCA 1990) (cocaine); Vetter v. State, 395 So. 2d 1199, 1200 (Fla. 3d DCA 1981) (cocaine). But going forward, under our decision today—which faithfully applies Baxter—dogs trained to alert on cannabis can no longer provide the sole basis for a stop or search.
Under our precedent,2 cannabis legalization no doubt has triggered a setback for drug-detecting canine officers. But it need not mark their retirement. For one thing, whatever “the durability of Robinson’s generalized holding if it were to be applied in a set of circumstances similar to our case,” ante, at n. 6, our decision today does not otherwise call it into doubt. There is nothing incompatible between today’s decision and the proposition that “[a]n alert by a properly trained police [drug-sniffing] dog provides probable cause for a search.” Robinson, 756 So. 2d at 250 (emphasis added). An alert by a dog trained not to alert to cannabis—or to alert to cannabis differently than it alerts to other drugs—can still on its own supply probable cause. And for another thing, even without such canine training, an undifferentiated alert can supply probable cause when combined with an officer’s questions ruling out the presence of lawful cannabis. Officers easily can be trained to ask such questions in conjunction with a dog’s undifferentiated alert.
In either case, today’s decision does not overrule Robinson’s general holding. Much less does it erase a valuable law-enforcement investigatory tool. Whether through an update to human officer training or an update to canine officer training, I expect that law enforcement can continue to rely on dog sniffs to support its critical drug-interdiction efforts within our district.
2 Baxter certified conflict with Owens v. State, 317 So. 3d 1218 (Fla. 2d DCA 2021). See 389 So. 3d at 813.

The Odor of Cannabis in Florida: A Legal Perspective

Florida court upholds probable cause based on the odor of marijuana for vehicle searches despite hemp and marijuana legalization. Legal insights for defendants.

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.

Let us help you 813.222.2220

Introduction

In recent years, the odor of cannabis has become more common and the debate surrounding the legality and implications of marijuana and hemp in Florida has taken center stage. With the legalization of hemp and, under certain circumstances, marijuana, it has sparked discussions about the role of the odor of marijuana in law enforcement. The Second District Court of Appeal in Florida recently tackled this issue in the case of the Defendant and his defense attorney, challenging a guilty plea for possession of methamphetamine. This article delves into the court’s decision and the implications it has on the odor of cannabis in Florida.

Background

The Defendant argued that the search of the vehicle was solely based on the odor of marijuana, contending that due to the legalization of marijuana and hemp in Florida, the odor of marijuana could no longer serve as probable cause for a vehicle search. The Defendant raised a compelling argument, pointing to the difficulty of distinguishing the scent of marijuana from that of hemp, which is legal. The Court’s decision and reasoning provide insight into the legal landscape surrounding this issue.

Court’s Decision

The Court, in its decision, rejected the Defendant’s argument and upheld their judgment and sentence. They disagreed with the Twentieth Judicial Circuit Court’s decision in State v. Nord, which held that the odor of marijuana alone couldn’t establish probable cause for a search during a traffic stop. Instead, they adopted the Ninth Judicial Circuit’s opinion in State v. Ruise, which concluded that an officer smelling the odor of marijuana during a traffic stop could justify a warrantless search of the vehicle, even if the odor was indistinguishable from that of legal hemp.

The Court emphasized that the odor of marijuana provided an officer with probable cause to believe that it indicated the illegal use of marijuana. They argued that the circumstances of the case, involving reckless driving and erratic behavior, further supported the officer’s decision to detain the Defendant and search the vehicle.

Future Implications

The Court’s decision signifies that, even if marijuana is legalized for recreational use, using it while driving could still lead to charges of driving while intoxicated. The smell of burning marijuana remains valid probable cause for a vehicle search, which aligns with a “practical and common sensical standard” of probable cause.

While recognizing that there might be legitimate explanations for the presence of the odor of fresh marijuana in a vehicle, such as a lawful prescription or the use of hemp, the Court asserted that such explanations would serve as an affirmative defense rather than a deterrent for a search.

Conclusion

In conclusion, the recent decision by the Second District Court of Appeal in Florida reaffirms that the odor of marijuana continues to be a valid basis for probable cause to search a vehicle, regardless of the legalization of hemp and certain circumstances surrounding marijuana. This decision provides clarity on an issue that has been at the forefront of legal discussions in Florida and maintains the balance between personal freedom and public safety.

Let us help you 813.222.2220

Complete Odor of Cannabis Opinion of the Florida Court

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

– 2

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.

– 3

§ 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.

– 4

Fighting for you or a friend. Law Office of W.F. ”Casey” Ebsary Jr 2102 W Cleveland St Tampa, Florida 33606 (813) 222-2220

Let us help you 813.222.2220