"Plain Smell" is Dead! Florida Courts Officially Rule Smell of Marijuana Alone No Longer Justifies a Search

For decades, Florida law enforcement officers relied on a simple principle: if they smelled marijuana, that odor alone was enough to search your car, detain you, or even arrest you. That changed dramatically with a recent decision from the Second District Court of Appeal (2nd DCA) in Darrielle Ortiz Williams v. State (No. 2D2023-2200, Oct. 1, 2025).

In a sweeping en banc opinion, the Second DCA joined the Fifth DCA’s reasoning in Baxter v. State (Fla. 5th DCA 2024), holding that the odor of cannabis—standing alone-no longer provides probable cause for a search. The court went a step further, formally receding from its prior decision in Owens v. State (2021) and certified a question of great public importance to the Florida Supreme Court:

“Does the plain smell doctrine continue to apply to establish probable cause based only on the odor of cannabis?”

This case is a seismic shift for criminal defense lawyers and law enforcement alike. It fundamentally alters how police may conduct stops and searches throughout Florida.

The Case That Sparked the Change — Williams v. State

The facts in Williams were straightforward. Mr. Williams, on probation, was a passenger in a vehicle stopped for minor traffic violations. Officers testified they smelled cannabis as they approached the car. That smell, without any other evidence, led them to order the occupants out and search the vehicle. Cannabis and a small bag of white powder were later found.

At the suppression hearing, defense counsel argued that the “plain smell” doctrine no longer applied because Florida law now distinguishes between legal and illegal cannabis, including medical marijuana and hemp. The trial court denied the motion to suppress, relying on Owens v. State, which held that the odor of marijuana alone still gave probable cause.

On appeal, the Second DCA agreed that the legal landscape had changed. The court ruled that changes to both state and federal law eliminated the continuing validity of the “plain smell” doctrine in cannabis cases. While affirming Mr. Williams’ probation revocation under the good faith exception (since the officers relied on existing precedent), the court made it clear: moving forward, smell alone will not justify a search.

Why the Court Changed Course on the Plain Smell Doctrine

The Williams court conducted an exhaustive review of statutory changes that dismantled the logic behind the “plain smell” rule:

• Florida Statute § 381.986 legalized the medical use of marijuana for qualified patients.

• Florida Statute § 581.217 created a state hemp program, legalizing hemp containing less than 0.3% THC.

• Florida Statute § 893.02(3) was amended to exclude both medical marijuana and hemp from the definition of “cannabis” under Florida’s controlled substances laws.

As the court observed, these amendments mean that cannabis is no longer per se illegal in Florida. The same plant can be lawful or unlawful depending on its source, THC content, or how it was obtained, factors that cannot be determined by smell.

The court wrote:

“By defining and legalizing discrete forms of cannabis on bases that are not discernable by smell…the mere odor of cannabis standing alone no longer can make it clearly or immediately apparent that the substance is contraband.”

In other words, the smell of cannabis no longer makes it “immediately apparent” that a crime has occurred—the key requirement for the plain smell or plain view doctrines.

How Williams Aligns with Other Recent Cases

The Second DCA’s decision doesn’t stand alone. It builds on a growing consensus among Florida appellate courts that smell alone is insufficient to justify a detention or search.

Baxter v. State (Fla. 5th DCA 2024)

The Fifth DCA ruled that the odor of cannabis alone cannot provide reasonable suspicion for a stop. The court recognized that since both hemp and medical marijuana are legal, the “plain smell” doctrine no longer reliably identifies criminal conduct. The court also certified conflict with Owens v. State.

Ford v. State (Fla. 5th DCA 2025)

The Fifth DCA expanded Baxter, holding that even a K-9 alert cannot automatically create probable cause if the dog cannot distinguish between legal hemp and illegal marijuana.

Simmons v. State (Fla. 3d DCA 2025)

The Third DCA joined the chorus, stating that the odor of marijuana alone does not establish probable cause because Florida’s medical marijuana laws allow legal possession and use in many circumstances.

Together, these rulings reflect a statewide shift toward requiring police to consider the totality of the circumstances, not just the smell, before conducting a search.

What This Means for Law Enforcement

For police officers in Florida, this ruling fundamentally changes how traffic stops and vehicle searches must be conducted. Officers can no longer detain or search someone solely because they smell marijuana.

Instead, they must look for additional indicators of illegal activity, such as:

• Admissions of illegal possession or use

• Observations of contraband in plain view

• Signs of impairment inconsistent with legal medical use

• Evidence that the driver or passenger is not a qualified medical marijuana patient

Without these additional facts, a search based only on odor could now violate the Fourth Amendment and Article I, Section 12 of the Florida Constitution.

Implications for Criminal Defense in Florida

This is a major victory for criminal defense and civil liberties. Defense attorneys can now challenge searches that were based only on smell, even in older cases where the law was unclear.

For current and future cases, Williams opens the door to motions to suppress evidence obtained during traffic stops and searches premised solely on odor. If suppression is granted, prosecutors may have to dismiss charges entirely, especially in possession, trafficking, and probation violation cases.

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Certified Question to the Florida Supreme Court

Recognizing the significance of its ruling, the Second DCA certified this question of great public importance:

“Does the plain smell doctrine continue to apply to establish probable cause based only on the odor of cannabis?”

The Florida Supreme Court will likely take up the issue to resolve conflicts among the districts. Its decision will determine whether Williams becomes the rule statewide or if Florida law reverts to its old “odor equals probable cause” standard.

Why This Matters for Everyday Floridians

For everyday Floridians, especially medical marijuana patients, this decision means greater protection from arbitrary searches. Officers must now have specific, articulable facts suggesting illegal conduct before they can search your vehicle.

However, it’s also important to remember that not all cannabis is legal. Possession of marijuana outside the medical program, or with THC content above 0.3%, remains a crime under Florida Statute § 893.13. And while hemp may be legal, driving under the influence of any impairing substance, including marijuana, remains illegal under § 316.193.

The Bottom Line

The Second DCA’s Williams decision officially marks the end of the “plain smell” doctrine in the 2nd District of  Florida, aligning the law with modern realities of cannabis regulation. This ruling demands that law enforcement rely on the totality of the circumstances rather than assumptions based on smell alone.

For Floridians, this means your rights just got stronger.

For police, it means every cannabis-related stop and search must now meet a higher constitutional standard.

Contact Our Marijuana Criminal Defense Attorney in Palm Beach County

If you were searched or arrested in Palm Beach County because police claimed they “smelled marijuana,” your constitutional rights may have been violated. Our Palm Beach criminal defense attorney understands how these new rulings impact your case and can aggressively challenge any unlawful search or seizure.

Contact The Law Offices of Matthew Konecky, P.A. today for a confidential case evaluation.

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