Can You Be Detained and Searched for Marijuana Based on Odor Alone?

You may have heard that a police officer can stop and search you based on the smell of marijuana alone. But is this still true in Florida after hemp was legalized? The answer may surprise you.

What Changed with Hemp Legalization in Florida

In June 2019, Florida legalized hemp with the passage of Senate Bill 1020. Hemp is defined as cannabis with a THC concentration of 0.3% or less. THC is the psychoactive compound in marijuana that causes impairment.

The key thing to understand is that hemp and marijuana are virtually indistinguishable – they look and smell the same. The only way to tell them apart is through quantitative testing of the THC levels.

New Guidance for Law Enforcement on Marijuana Odor

In light of the new hemp law, the Miami-Dade State Attorney’s Office issued an important memo to law enforcement with new guidelines for making marijuana arrests. The memo states:

“Since there is no visual or olfactory way to distinguish hemp from cannabis, the mere visual observation of suspected cannabis — or its odor alone — will no longer be sufficient to establish probable cause to believe that the substance is cannabis.”

Let that sink in for a moment. The odor of marijuana alone is no longer enough for police to detain and search you in Florida. They need additional evidence beyond just the smell.

Factors Police May Consider Along With Marijuana Odor

The memo outlines some additional factors police may look at to establish probable cause for a marijuana offense, such as:

  • Criminal history of narcotics violations
  • Observation of a hand-to-hand transaction
  • Admission by the suspect that the substance is marijuana
  • Conflicting statements by the suspect
  • Discarding or attempting to hide the substance
  • Presence of large amounts of cash, weapons, or drug paraphernalia
  • Signs of impairment like bloodshot eyes or slurred speech

Police must assess the totality of the circumstances. No single factor is determinative. Even with these additional factors, police are advised not to make a marijuana arrest until they have a positive lab test showing the THC content is above the legal 0.3% limit.

Florida’s Second District Court of Appeal Weighs In

So far, only one Florida appellate court has directly addressed this issue. In a 2021 case, Evans Joshua Owens v. State of Florida, the Second District Court of Appeal rejected the argument that the legalization of hemp invalidates marijuana odor as probable cause for a vehicle search.

The court held that “an officer smelling the odor of marijuana has probable cause to believe that the odor indicates the illegal use of marijuana.” The court expressly disapproved of a circuit court opinion that had found the odor of marijuana insufficient for probable cause due to hemp legalization.

What About Searches in Miami-Dade and Other Counties Outside the Second District?

It’s important to note that the Second District Court of Appeal does not have jurisdiction over Miami-Dade County. Miami is located within the Third District Court of Appeal. Therefore, the Owens decision from the Second District is not binding legal precedent in Miami marijuana cases.

As of now, neither the Third District Court of Appeal nor any other Florida appellate court besides the Second DCA has ruled on whether the odor of marijuana remains valid probable cause for a vehicle search since hemp was legalized. So in Miami and other counties outside the Second District, the analysis in the Miami-Dade State Attorney’s memo may still hold true – the smell of marijuana alone, without other suspicious factors, may be insufficient to establish probable cause after the legalization of hemp.

However, all drivers and passengers in Florida should be aware that based on the Second DCA’s opinion, there is now appellate precedent that marijuana odor is sufficient probable cause to search a vehicle. It’s possible that other Florida appellate courts, including the Third DCA in Miami, could adopt the same position in future rulings.

Protecting Your Rights During Police Encounters

So what does this mean for you? If police stop you and they claim to smell marijuana, remember:

  1. Politely decline any searches.
  2. Do not make any admissions about possessing marijuana. Exercise your right to remain silent.
  3. Do not consent to a search of your person, vehicle, or belongings under any circumstances. Require the officer to get a warrant.
  4. If you are arrested for marijuana possession, contact an experienced criminal defense attorney immediately to protect your rights and challenge the basis for the arrest.

We’re Here to Help You Fight Improper Marijuana Charges

At The Edelstein Firm, our skilled attorneys are up-to-date on all the changes to Florida’s marijuana laws. We know how to hold law enforcement accountable and get illegally obtained evidence thrown out. If you’ve been arrested for marijuana, contact us right away for a free consultation. We’re here to vigorously defend your rights and freedom.

CALL US NOW for a CONFIDENTIAL INITIAL CONSULTATION at (305) 538-4545, or take a moment to fill out our confidential and secure intake form.* The additional details you provide will greatly assist us in responding to your inquiry.

 

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