For years, Florida drivers faced a fairly simple rule: if a police officer smelled marijuana coming from a vehicle, that odor could provide probable cause to search the car.
Florida law has changed.
With the legalization of medical marijuana and hemp, the smell of cannabis no longer necessarily means that a crime is taking place. Florida appellate courts have now recognized an important principle sometimes referred to as "Smell Plus."
In simple terms:
The smell of marijuana can still be a factor, but the smell alone may not be enough to establish probable cause to search your vehicle.
That distinction can be extremely important in drug possession, trafficking, firearm, and other criminal cases arising from vehicle searches in Palm Beach County and throughout Florida.
Why Did Florida's Marijuana Search Law Change?
The problem for law enforcement is relatively straightforward: marijuana odor is no longer necessarily the odor of illegal activity.
Florida permits certain people to legally possess medical marijuana under Florida Statute § 381.986. Florida also legalized hemp under Florida Statute § 581.217, subject to the statutory THC limits and other requirements.
And here is the constitutional problem:
Legal hemp, legally possessed cannabis, and illegal marijuana may smell the same.
An officer standing outside a car generally cannot determine from smell alone whether the odor is coming from illegal marijuana, lawful hemp, or another legally possessed cannabis product.
That matters because the Fourth Amendment requires probable cause before police can conduct a warrantless vehicle search under the automobile exception. The automobile exception makes a warrant unnecessary in certain circumstances, but it does not eliminate the requirement of probable cause.
Williams v. State Changed the Analysis
One of the most important recent Florida cases on this issue is Williams v. State, 421 So. 3d 809 (Fla. 2d DCA 2025).
Sitting en banc, the Second District Court of Appeal concluded that changes to Florida's cannabis laws meant that the mere odor of cannabis could no longer make it immediately apparent that contraband was present.
In other words, the old assumption:
"I smell marijuana, therefore there must be illegal marijuana in the car"
doesn't necessarily work anymore.
The court recognized that medical marijuana and hemp can be lawfully possessed in Florida and that their odor may be indistinguishable from illegally possessed cannabis.
Importantly, this does not mean police must ignore the smell of marijuana.
Odor remains something an officer can consider as part of the totality of the circumstances. It simply means odor alone is not necessarily enough.
That's where the idea of "Smell Plus" comes in.
What Does "Smell Plus" Mean?
Think of it this way:
Smell + additional evidence suggesting criminal activity = potentially probable cause.
The exact circumstances matter. There isn't one universal "plus" that automatically makes a search lawful.
For example, an officer might claim additional circumstances such as contraband or drug-related evidence in plain view, statements by an occupant indicating illegal possession, or other observations that, when combined with odor, arguably establish probable cause.
But merely saying, "I smelled marijuana," is a very different case.
The Florida courts look at the totality of the circumstances, meaning the facts have to be evaluated together rather than treating cannabis odor as an automatic green light to search.
A Real-World Example From One of Our Cases
This issue isn't merely theoretical for our firm.
In a recent Broward County case, The Law Offices of Matthew Konecky, P.A. filed a Motion to Suppress challenging a vehicle search based on precisely this issue.
The officer initially stopped the vehicle for an alleged window-tint violation. When he approached, he said that he smelled cannabis. According to the officer, that smell was the basis for removing the driver from the vehicle and conducting a narcotics search.
During the officer's deposition, I asked:
Other than the smell of marijuana, did you have any reason to believe that a crime was being committed?
The officer answered:
"No."
The officer also confirmed that it was the marijuana odor that caused him to have the driver exit the vehicle so that the car could be searched.
That testimony became critical to our suppression argument.
Did the Officer Investigate Whether the Marijuana Could Be Legal?
There was another important issue in that case.
Before searching the vehicle, the officer testified that he did not ask whether the driver had a medical marijuana card. He also agreed that hemp can smell like marijuana and acknowledged that he did not ask whether the driver possessed hemp.
That illustrates the problem with an odor-only search.
If legal hemp and illegal marijuana can smell alike, what fact transformed the officer's observation from:
"I smell cannabis"
into:
"I have probable cause to believe there is contraband inside this vehicle"?
That is exactly the type of question a criminal defense attorney should be asking.
What If Police Find Drugs After They Start Searching?
Finding illegal drugs does not necessarily retroactively make the original search lawful.
That is a critical concept.
In our case, the search ultimately uncovered substances alleged to include cocaine, amphetamine, cannabis, and prescription pills. But the officer acknowledged that certain suspected drugs were not in plain view when he initially approached the vehicle. They were discovered only after officers began searching.
For example, the officer testified that one bag was inside a dashboard compartment and was not visible when he first approached the vehicle. Another bag containing a white powder-like substance also was not initially in plain view.
That distinction matters.
The constitutional question generally isn't:
"Did the police eventually find something illegal?"
The question is:
"What facts did the police have BEFORE they conducted the search?"
If probable cause did not exist when the search began, the discovery of contraband during that search does not necessarily cure the constitutional problem.
What Should a Criminal Defense Attorney Look For in a "Smell Plus" Case?
When we review a vehicle search involving the alleged odor of marijuana, we don't simply accept the phrase "odor of marijuana" in the arrest report and move on.
We want to know what happened before the search.
Among the questions that may matter are whether the officer claimed to smell burnt or raw cannabis, whether anything illegal was actually in plain view, whether the officer observed additional evidence of a crime, what the body-worn camera shows, what the officer said before beginning the search, whether the officer asked about lawful possession, and whether the officer's later deposition testimony matches the probable cause affidavit.
Sometimes one sentence in a deposition can change the entire analysis.
In the case discussed above, the officer acknowledged that other than the marijuana odor, he did not have another reason to believe a crime was being committed.
That is very different from a case involving multiple independent facts pointing toward criminal activity.
"Smell Plus" Does Not Mean Police Can Never Search a Car
There is an important limitation here.
Williams does not stand for the proposition that the odor of cannabis is irrelevant.
Florida courts may still consider cannabis odor together with other circumstances. Your case may therefore turn on what the officer identifies as the alleged "plus."
In Cherfils v. State, for example, the Second District recognized that cannabis odor can be considered with other factors under the totality of the circumstances. The distinction discussed in our motion was that the officer in Cherfils was not relying on cannabis odor alone.
This makes the factual investigation especially important.
Arrested After Police Said They Smelled Marijuana in Your Car?
If police searched your vehicle in Palm Beach Gardens, West Palm Beach, Jupiter, North Palm Beach, Royal Palm Beach, Boynton Beach, Lake Worth, Boca Raton, or elsewhere in Palm Beach County because an officer claimed to smell marijuana, don't assume the search was automatically legal.
The legality of the search may affect far more than a marijuana charge.
An odor-based vehicle search can lead police to discover alleged cocaine, fentanyl, pills, firearms, or other evidence that results in serious felony charges. If the original search violated the Fourth Amendment, a defense attorney may be able to file a Motion to Suppress seeking to exclude evidence obtained as a result of that unlawful search.
At The Law Offices of Matthew Konecky, P.A., we handle drug possession, possession with intent to sell, drug trafficking, and other criminal cases involving vehicle searches and Fourth Amendment issues.
Our office is located in Palm Beach Gardens, and we represent clients throughout Palm Beach County and South Florida.
If you or a loved one was arrested after a vehicle search, contact us online or call 561-671-5995 to discuss what happened.
The fact that police found something does not necessarily mean they had the constitutional right to search for it in the first place.
