The Plain Smell Doctrine In Florida After Baxter V State

An article from The Defense Group, Central Florida criminal defense law specialists.

August 2, 2024, marked a seismic shift in the law of search and seizure in Florida. This is good news for anyone who drives or rides in a vehicle and would prefer not to be jacked around by the cops.

It is not our intent to bore you with legal minutia, or to make you lawyers, but this is too interesting to just provide a paragraph about the change.

For decades, Florida Courts have recognized the “Plain Smell Doctrine.” This is an exception to the ordinary rule that the police need a warrant or consent to search you or your belongings. This exception holds that if an officer is able to detect the odor of an illegal substance in a car, boat, RV, plane, or other easily moved object, then they have probable cause to search for the source of that odor. This idea was born many decades ago when federal officers detected the odor of moonshine. For the last 50 years or so it is almost always the odor of cannabis that has triggered the police searches. Here’s how it has worked for the past 50 years or so. The police find some minor traffic infraction as an excuse to stop your vehicle. The cops know that this is a numbers game. If they could lawfully stop and search everybody, there is some percentage of stops that would lead to an arrest. The goal then is to first find a lawful reason (excuse) to stop a car. Tint that is suspected to be too dark is popular. Failure to wear a seat belt is another. Not stopping for the “stop bar” at an intersection is frequently listed as the reason for a stop. Driving 46 miles per hour in a 45 zone is all they need. Cops have been known to follow a vehicle for miles in hopes of seeing some minor infraction.

So, the cop approaches the driver’s window and asks for your DL, insurance, and registration. This requires the driver to lower the window to talk to the cop and provide the documents. The officer later writes in his report, “Upon approaching the driver side window, I immediately recognized, from my training and experience, the odor of burnt (or sometimes fresh) cannabis emanating from the interior of the vehicle.” In the past few years, better-trained officers might then ask if anybody in the vehicle has a medical marijuana card issued by the State. This might offer a legal explanation for the odor. If nobody presents such a card, the officers order everybody out of the car and declare they have probable cause to search for the source of the odor. And until August 2, 2024, this worked for the cops. Often they found other reasons to make an arrest. There was no cannabis found but perhaps they were able to locate some other drugs, an illegal firearm, or whatever. The cop may have lied about smelling the odor of cannabis, but no matter. The search was lawful and whatever they found could be used as evidence against passengers in the vehicle.

The criminal defense trial attorneys at The Defense Group have been fighting against this exception to the warrant rule for years. Without getting too deep into the legal weeds, two major changes in the law convinced us that this “plain smell rule” was no longer correct. It took years to get the courts to agree!!

First, in 2014, Florida passed a ballot initiative approving the sale and use of “medical marijuana.” In 2015 Florida legalized medical marijuana by statute, defined “cannabis,” and approved cards to be issued by the State to identify those entitled to purchase and use medical marijuana. Legal marijuana and illegal marijuana smell identical (it is the same substance) so how could an officer know if he was smelling something illegal or not? [Spoiler Alert—They can’t!] While Florida authorized dispensaries to sell legal marijuana, it prohibited smoking it in vehicles (just as it is illegal to drive while drinking an alcoholic beverage.) The police argued (and the Court’s agreed) that this change in the law was not enough to overcome the long-standing rule that if the cops claim to smell cannabis, they can search.

Second¸ hemp was legalized. In December 2018, the federal statutes defining illegal cannabis excluded hemp from the definition, thereby legalizing possession and use of hemp. The only difference between marijuana and hemp is that hemp does not have the level of THC needed to get you high. It requires sophisticated and expensive equipment to tell the difference. The two substances are completely indistinguishable by appearance and smell. Even K-9 police dogs cannot tell the difference. Even the little field test kits used by the police to identify drugs are useless. As Judge Kilbane noted in the August 2, 2024, Baxter opinion, “In July 2019, the Florida Legislature enacted the “State hemp program.” § 581.217, Fla. Stat. (2019). Under section 581.217(2)(b), Florida Statutes (2021), “[h]emp-derived cannabinoids, including, but not limited to, cannabidiol, are not controlled substances or adulterants.”

Smokable hemp was authorized in Florida beginning July 1, 2020. See § 581.217, Fla. Stat. (2020). Unlike medical marijuana, there are no restrictions placed on smoking hemp in vehicles. As of July 1, 2020, there was no longer a sustainable argument that an officer claiming to detect the odor of illegal cannabis was necessarily detecting anything illegal. It was just as likely he was detecting the odor of either legal medical marijuana or the odor of legal hemp. Lawyers from The Defense Group and other lawyers argued that this old rule, (which we believed had been abused by the police for decades,) was no longer valid. In October 2023, Florida’s 5^th District Court of Appeals started the process that eventually broke the dam. In that case, the defendant’s lawyers made the same argument we have discussed above. No human can truthfully swear that the odor they detect is illegal cannabis instead of either legal medical marijuana or hemp, both of which are legal, both in Florida and under federal law. The Court came short of agreeing with Mr. Baxter and upheld his conviction because there were other suspicious factors in addition to the odor detected by the cops. While the Court dodged the question about the ongoing validity of the “Plain Smell Doctrine,” Judge Kilbane wrote a separate opinion in which he brilliantly made the argument we had been trying to make for years. He made the argument that but for the extra suspicious factors in the Baxter case, he would have voted to overturn the conviction. While his concurring opinion was wonderful for defense attorneys, it was not part of the ruling of the case, and it was not a binding opinion on any other court…anywhere. He argued there for what has now become the “plain smell plus” rule. The “plus” is the presence of other suspicious factors, which taken together with the smell of suspected cannabis, will justify a search.

Baxter’s attorneys were encouraged by this opinion and asked the Court to rehear the case en banc. Ordinarily, cases appealed to the District Court are assigned to a 3-judge panel for decision. That was the case in the October 2023 Baxter case where Judge Kilbane wrote his opinion. If a District Court thinks a case is sufficiently important, they can agree to hear the case en banc, which means that all 15 judges on that District Court will hear the case and render an opinion. The 5^th District agreed and solicited briefs and opinions from all over Florida. It took until August 2, 2024, for them to finally hand down their opinion, but it was worth waiting for.

The Law of “Plain Smell” after Augusts 2024:

In the en banc case, Judge Kilbane got to write the opinion for a unanimous court. He repeated and expanded on his concurring opinion from the previous October. From August 2, 2024, forward, if an officer claims to detect an odor he believes to be illegal cannabis and has no other observations or factors indicating anything illegal, the officer is not authorized to waive the warrant requirement, remove the occupants of the vehicle, and search. In other words, “plain smell” alone will no longer cut it. That said there are two important things to know about this opinion:

• It only applies “prospectively. For people searched and arrested before August 2, 2024, the principle of “good faith” applies. The cops were just following the law as they understood it before this case changed everything. The rule that permits courts to “suppress” or throw out evidence is intended to compel the cops to follow the law, and before August 2, 2024, they were following the decades-old law. We actually have two plain smell search cases in our office. One occurred on August 1, 2024, less than 24 hours before the new case was handed down. The other was in late August. In the second case, all of the evidence is suppressed, and the charges will be dismissed. In the first case, we were unable to get the evidence suppressed, but a thoughtful prosecutor permitted our client into a diversion program, so the charges will eventually be dismissed.

• Cops will not take this lying down. Most good-sized police agencies have Police Legal Advisors (attorneys) to help them find a “workaround.” Expect officers who approach a vehicle and believe they smell marijuana to ask a few questions. First, “does anyone in the vehicle have a medical marijuana card?” If so, “let’s see it.” If they clear that hurdle, they can be expected to ask if anyone has or has been using any hemp products. If everyone denies possessing medical marijuana or hemp, the officers are likely to go ahead and search and see what the Courts will do about it. Their argument is that if there is no medical marijuana or hemp in the car then what we smell must be illegal pot.

• IMPORTANT!!
  • If you are stopped by the police for some traffic infraction, you are required to produce your driver’s license, registration, and insurance. You are required to sign any citation they give you. YOU ARE NOT REQUIRED TO TALK. The right to remain silent that you hear all the time on TV and at the movies does not begin when a cop tells you. You were born with that right. You woke up with that right. Exercise it at all times. You are not required to answer any questions. You are not required to advise if you have any medical marijuana or hemp in the car. You have no obligation to prove anything. JUST SHUT UP! Be polite and courteous, but totally uncooperative. Advise the police that you’d love to help, but you have been advised to never ever talk to the police without an attorney, and you are going to take that advice.
  • Never ever give consent to the police to search you or your car, or anything else. If you consent, they do not need to prove they had probable cause to search. Again, be polite, but firm. Just say NO! Even if you are sure there is nothing in your vehicle that is a problem, never consent to a search. They may search anyhow. Do not resist, but if you can, use your smart phone to record the incident including your refusal of consent and their search. Bring us that video. It will be fun.

We hope you found this article informative and interesting. If you have any questions about this or any other legal topic involving criminal law in Florida, reach out to us and one of our criminal defense professionals will try to help.

Hal Uhrig, Esq.
FBN 196256
The Defense Group
3708 S. John Young Parkway
Suite D, Box 10
Orlando, Fl. 32839
pzapata@defensegroup.com
407-831-1956