The Evolution Of Florida’s “Plain Smell” Doctrine

In October 2025, Florida’s Second District Court of Appeals heard a case which struck down the state’s so-called “plain smell doctrine.” This was an unwritten rule which held that the mere smell of cannabis was sufficient probable cause for law enforcement to search a person or their vehicle for drugs. However, as the law has changed, so have courts’ interpretations, and as of this writing, a certified question is before the Florida Supreme Court on this issue.

No Longer Probable Cause

When a person is stopped by law enforcement, the officer may not search them or their vehicle without sufficient probable cause. While probable cause has no specific written definition, it is generally held that if a law enforcement officer (LEO) has a reasonable suspicion that a crime has been committed, they have probable cause to make an arrest. Many different types of evidence can help to create ‘reasonable suspicion,’ from odors to visuals to behavior.

Historically, the ‘plain smell’ of cannabis was enough to establish probable cause for an arrest because there was no legal ground on which the average person could possess cannabis. Now, however, there is – and in the last few years, Florida courts have begun to hand down decisions invalidating this doctrine. One key decision was Baxter v State (2024), in which the court held that the smell of cannabis was no longer “clearly indicative of criminal activity,” while they affirmed the conviction of the appellant for other reasons.

One Factor Among Many

Because hemp products are legal, as is cannabis for medical patients, it is not unreasonable to conclude that the mere smell of cannabis in a vehicle does not give probable cause for a search. The Second District Court of Appeals actually reversed itself in agreeing, deciding in Williams v State (2024) that because the smell was the only factor on which the LEO concluded their search, any evidence found should not have been admissible. That said, the conviction of Mr. Williams was upheld, because the officers believed in good faith that the law still permitted such a search.

The verdict for Mr. Williams notwithstanding, however, it is important to keep in mind that the Court of Appeals’ ruling only bars a finding of probable cause based solely on ‘plain smell.’ In other words, a law enforcement officer can factor in the odor of cannabis as one factor among many, but it cannot be the sole reason for the officer to make an arrest.

Contact A West Palm Beach Drug Crimes Attorney

While it remains to be seen whether the Florida Supreme Court will settle the issue once and for all, it is likely – though not set in stone – that the lower courts will uphold the overrule of the ‘plain smell’ doctrine. If you have been charged with cannabis-related offenses, a West Palm Beach drug crimes attorney from Perlet & Shiner, P.A. can help answer your questions and protect your rights. Call our office today to speak to an attorney.

Source:

law.justia.com/cases/florida/fifth-district-court-of-appeal/2024/5d23-0118.html