The Fourth Amendment grants people the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”[i] It also states that “no [w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[ii] Why is it then, that countless routine traffic stops for speeding, failing to wear a seatbelt, or running a red light, result in drivers charged for possession of a controlled substance or driving under the influence? Situations like these raise questions about the Fourth Amendment’s right to be free from unreasonable searches and seizures. However, people fail to realize that these rights have limits, many of which differ from state to state.
One exception allowing police officers to search and seize is the “plain view” doctrine, under which warrantless seizures are permitted, provided certain conditions are met.[iii] The officer must be positioned in a way that the object can be plainly seen, the incriminating nature of the object must be immediately apparent, and the officer must have a lawful right of access to the object itself.[iv] An extending branch from the plain view doctrine is the “plain smell” doctrine, under which the smell of a controlled substance emanating is sufficient to give officers a justification to conduct a search.[v] The Florida District Courts of Appeal has set precedence that the smell of marijuana emanating from someone’s car, clothing, or bag grants sufficient probable cause to justify a search.[vi]
However, in response to the legalization of medicinal marijuana, courts have recently changed their opinions on the extent of Fourth Amendment protections when it comes to officers searching and seizing based on plain smell alone. Initially, attention was drawn to the “plain smell” doctrine when Florida Statute section 581.217 was passed in 2013 permitting the cultivation of hemp.[vii] However, since Florida Statute section 381.986 went into effect in 2021, legalizing the use of medical marijuana for patients with a “qualifying medical condition,” courts gravitated towards applying a stricter standard to establish probable cause.[viii]
Under Florida Statute section 381.986, patients must have a qualified medical condition or a terminal condition, but still, qualified physicians have significant discretion in prescribing medical marijuana.[ix] One of the many limitations to this statute is “use” and “possession.” Using medicinal marijuana, like other forms of marijuana, is prohibited in public spaces, schools, buses, vehicles, and correctional facilities. Florida Statute 381.986 also limits possession of medical marijuana to a seventy-day supply.[x] Every patient who uses prescribed medical marijuana and every physician who prescribes it legally is immune from arrest, prosecution, and penalties under Florida law. Under federal law, however, they are subject to punishment since marijuana is still considered a Schedule I controlled substance under Florida Statute 893.03.[xi]
With the legalization of medicinal marijuana in Florida, the goal of law enforcement agents to maintain public safety is bumping heads with the judicial system’s purpose of protecting people’s rights. It is not unordinary for police to now suspect people will obtain or use medicinal marijuana in ways prohibited by Florida Statute 381.986. However, what happens to the rights of individuals, who have merely been near others using marijuana illegally, when the odor of cannabis lingers on their clothes, person, or car interior?
Courts at both the trial and appellate level are beginning to reconsider the legal standard that qualifies officers to meet the probable cause requirement to search or seize on this basis. Prior to the legalization of hemp, followed by the legalization of medicinal marijuana in Florida, the “plain smell” doctrine alone provided police officers the necessary probable cause to conduct a warrantless search and seizure based on odor alone, much like the plain view doctrine does when contraband is visible.”[xii] In recent years, however, some Florida courts have properly deviated from this standard by following a stricter form of the plain view doctrine—the “smell-plus” doctrine.
Florida lacks uniformity across its District Courts of Appeal as to which branch of the plain view tree establishes sufficient probable cause for a search.[xiii] However, with a recent en banc ruling in Florida’s Second District Court of Appeal, a new precedent has been set, requiring a totality-of-the circumstances approach for probable cause in conducting a search for marijuana: the “smell-plus” doctrine.[xiv] Under this standard, the smell of marijuana remains a factor contributing to probable cause, but it cannot constitute the sole basis on which the probable cause requirement for a warrantless search or seizure is met.[xv] To create probable cause, officers must consider other factors in addition to smell. These factors could range from seeing the contraband in plain view to observing a nervous condition, but odor by itself is insufficient to create probable cause.[xvi] By adopting the “smell-plus” doctrine in Williams v. State, the Second District Court of Appeal departed from its prior precedent, reasoning that “legislative changes over the years to the definition and regulation of cannabis have eliminated the continuing validity of the plain smell doctrine in this context.”[xvii]
While some states continue to follow the plain-smell doctrine, Florida courts are increasingly adopting the “smell-plus” approach, analyzing the totality of circumstances and requiring police officers to provide additional corroboration before a warrantless search and seizure can take place.[xviii] The Second and Fifth District Courts of Appeal have definitively adopted the “smell-plus” doctrine, whereas the First, Third, Fourth, and Sixth District Courts of Appeal have not definitively ruled on the matter. [xix] Instead, their opinions reflect skepticism toward allowing marijuana odor to create probable cause, and they continue to apply the traditional plain view doctrine.[xx]
Florida should adopt a uniform statewide standard requiring all District Courts of Appeal to follow the “smell-plus” doctrine when determining probable cause based on the odor of marijuana. Such uniformity would not only promote and ensure consistent law enforcement practices across jurisdictions, given that it is common for individuals to travel across city borders, but it would safeguard individuals’ constitutional rights against searches conducted solely on the basis of odor without sufficient corroborating evidence.
[i] U.S. Const. amend. IV.
[ii] Id.
[iii] See Coolidge v. New Hampshire, 403 U.S. 443, 465-66 (1971) (holding that officers may lawfully seize evidence without a warrant if the officer is lawfully present or lawfully in position to view that object, and the item’s incriminating nature is immediately apparent).
[iv] See id.
[v] See State v. Betz, 815 So. 2d 627, 633 (Fla. 2002) (holding that similar to sight, smell can justify a warrantless search if the officer is lawfully present and has probable cause); see also Owens v. State, 317 So. 3d 1218, 1220-21 (Fla. 2d DCA 2021) (reaffirming the ‘plain smell’ doctrine in Betz and emphasizing that probable cause depends on the officer’s reasonable belief that marijuana was the odor detected).
[vi] See State v. Williams, 967 So. 2d 941, 942 (Fla. Dist. Ct. App. 2007) (“We conclude under well-settled Florida law, the detection by a police officer of the odor of burnt cannabis emanating from a vehicle, by itself, constitutes sufficient ‘facts and circumstances’ to establish probable cause to search the person of an occupant of that vehicle.”); see also State v. T.P., 835 So. 2d 1277, 1279 (Fla. Dist. Ct. App. 2003) (holding that officers can search a person’s clothing or bag from which the smell of marijuana is emanating).
[vii] See Fla. Stat. § 581.217 et seq. (2013).
[viii] See Fla. Stat. § 381.986 et seq. (2021).
[ix] See Fla. Stat. § 381.986(2).
[x] See Fla. Stat. § 381.986(4)(f).
[xi] See Fla. Stat. § 893.03(1)(c) (2013).
[xii] See Betz, 815 So. 2d at 633; see also Owens, 317 So. 3d at 1220–21.
[xiii] See Don Pumphrey, Jr., Major Florida Court Strikes Down ‘Plain Smell’ Doctrine. Pumphrey L., (Oct. 3, 2025) https://www.pumphreylawfirm.com/blog/major-florida-court-strikes-down-plain-smell-doctrine/ [https://perma.cc/J9NE-LM5W].
[xiv] See id.; see also Williams v. State, No. 2D2023-2200, slip op. at 3–4 (Fla. 2d DCA Oct. 1, 2025) (en banc) (“[T]he smell of cannabis standing alone is insufficient to establish probable cause. In doing so, we recede from prior precedent to the contrary, thereby aligning the analysis for cannabis with the totality-of-the-circumstances approach that broadly applies to other Fourth Amendment questions.”)
[xv] See Williams, slip op. at 3–4 (receding from prior precedent, affirming the “smell-plus” doctrine, holding that the odor of marijuana alone is no longer sufficient to establish probable cause to conduct a search, probable must now be evaluated under the totality-of-the-circumstances test which requires “the smell of cannabis plus additional indicators” of criminal activity); see also Owens v. State, 317 So. 3d 1218, 1219 (Fla. Dist. Ct. App. 2021) (“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.”).
[xvi] See Baxter v. State, 337 So. 3d 437, 442 (Fla. 1st DCA 2022) (“Because the odor of marijuana may now be attributable to lawful hemp, officers must identify additional circumstances—such as visible contraband, admissions, or other indicators of illegality—to support probable cause for a search.”); see also Hatcher v. State, 342 So. 3d 807, 812 (Fla. 5th DCA 2022) (“While the odor of marijuana alone may no longer provide probable cause in light of the legalization of hemp, the odor—when combined with other circumstances such as nervous behavior, inconsistent statements, or visible residue—can still support a finding of probable cause.”)
[xvii] Williams, slip op. at 2.
[xviii] Baxter, 337 So. 3d at 442 (holding that additional corroborating factors are required to establish probable cause for a search based on the odor of cannabis); Hatcher, 342 So. 3d at 812 (holding that odor combined with other circumstances can establish probable cause, but odor of marijuana alone no longer can); see Williams, slip op. at 3–4 (holding that officers must now rely on additional factors beyond odor under the totality of circumstances to establish probable cause that a crime occurred).
[xix] See Pumphrey, supra note xiii.
[xx] See Pumphrey, supra note xiii.
