Switch to ADA Accessible Theme
Close Menu
Orlando Criminal Defense Lawyer > Blog > Drug Crime > Can a Police Officer Detain You Based on the “Smell” of Marijuana?

Can a Police Officer Detain You Based on the “Smell” of Marijuana?


Outside of certain state-approved medical uses, it is illegal to possess marijuana in Florida. Simple possession of 20 grams or less of marijuana is a misdemeanor punishable by up to 1 year in jail and a fine of $1,000. You can even be charged with possessing “drug paraphernalia” related to the cultivation or use of marijuana.

Divided Appeals Panel Highlights Confusion Following Legalization of Hemp

There has been some recent confusion within the Florida courts as to what is known as the “plain smell doctrine.” This is the idea that a police officer may establish probable cause to detain a person suspected of drug possession simply due to the smell of cannabis, the active ingredient in marijuana. The reason for the confusion is that in 2019, Florida legalized the production of hemp, which is a plant in the same botanical family as cannabis. More to the point, the odor produced by hemp is effectively indistinguishable from that of marijuana.

So if an officer smells what they think is illegal marijuana may actually be legal hemp, does the “plain smell doctrine” still apply? The Florida Fifth District Court of Appeal recently addressed that question. In Baxter v. State, a police officer observed the defendant pulling his car into the parking lot of a closed store. The officer decided to check on the defendant to see if he needed assistance and make sure he was not possibly committing any property crime.

The officer approached the defendant and asked him how he was doing. The defendant volunteered that he was waiting to meet a friend. The officer asked several follow-up questions. The defendant then changed his story and said he had pulled into the parking lot to check his tire before going to his friend’s house.

During this encounter, the officer said he smelled what he believed to be “fresh marijuana.” A second officer asked the defendant if he had a medical marijuana card. The defendant said no. The officers then handcuffed the defendant and searched his vehicle, where they found marijuana.

Prosecutors charged the defendant with misdemeanor possession of marijuana and drug paraphernalia. The defendant moved to suppress the evidence gathered from his car, arguing that the police lacked “reasonable suspicion” to detain him in the first place. The trial court denied the motion. The defendant then entered a no-contest plea to the paraphernalia charge but reserved his right to appeal on the suppression issue. (The state dismissed the marijuana possession charge.)

A divided three-judge panel of the Fifth District upheld the trial court’s ruling. In doing so, the majority explained that in a 2021 case, the Second District held that the plain smell doctrine still applied in Florida “notwithstanding the legalization of hemp.” And absent a conflicting decision from another district court, the majority said it was bound to follow the Second District’s reasoning. One judge on the majority, however, said the Florida Supreme Court should consider the issue. The third judge dissented, stating the plain smell rule should be abandoned due to the legalization of hemp.

Contact the Joshi Law Firm Today

While recreational use of marijuana has become more socially accepted in recent years, it remains illegal in Florida. So if you have been charged with a drug crime related to the cultivation, possession, or use of marijuana and need legal representation from a qualified Orlando drug crime attorney, contact the Joshi Law Firm, P.A., today at (407) 661-1009 or contact us online to schedule a free initial consultation.



Facebook Twitter LinkedIn