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Medical Marijuana is Now Legal in Florida, but Police Officers Can Still Detain a Driver and Search the Car Based on the Odor of Marijuana

One reason police are often against the full legalization of marijuana is that marijuana illegality gives police officer perhaps the easiest excuse to search people and vehicles. Likewise, marijuana arrests are about as easy as it gets for police officers. They smell marijuana, they search and they arrest. No real work, thought, diligence or investigation required. And while marijuana arrests obviously do nothing to make anyone safer and needlessly cost time, money and resources, they count as arrests on the stat sheet all the same. And I suppose it beats having to investigate real crimes that actually have real victims.

Florida has been slow to work its way into the 21st century and legalize marijuana, but at least medical marijuana is legal. Now, some people (those with a valid medical marijuana card) whose vehicle or other property may smell like marijuana may not be doing anything illegal.  Since that is the case, should police still be allowed to stop and search people based on the odor of marijuana when marijuana is not necessarily illegal depending on who has it?

In a recent case near Jacksonville, Florida, police officers stopped a vehicle at night for a headlight violation. They approached the vehicle and smelled burnt marijuana. They searched the vehicle and arrested the suspect for possession of cannabis. The criminal defense lawyer filed a motion to suppress the evidence of marijuana arguing that the police unlawfully searched the vehicle because the odor of marijuana does not necessarily indicate illegal activity.

The court rejected the criminal defense attorney’s argument for several reasons. At the time, marijuana flower was not yet legal. That has changed. More importantly, the odor of burnt marijuana might indicate the driver was smoking while driving which would be a sufficient indication of a crime to move forward. The court also noted that marijuana possession is still illegal under federal law, although local police officers obviously do not initiate federal criminal cases for possession of marijuana.  Finally, and this would seem to affect any case where the police officer claims to smell marijuana, the court held that the odor of marijuana is still sufficient probable cause to search regardless of the medical marijuana law. If there is a fair probability that someone is committing a crime, the police can investigate further. In this case, there is a fair probability that someone with marijuana is not a medical marijuana card holder.

The bottom line appears to be that the police can still use the odor of marijuana as a way to search people and property. When cannabis is fully legalized in Florida, possibly in 2020, this issue will be revisited. Our advice is to avoid driving if you or your car is going to smell like marijuana. Otherwise, if a police officer indicates he is going to search you or your property based on the odor of marijuana and you have a medical marijuana card, record the encounter and let the officer know as soon as possible. Disclosing your legal status to the police officer may be sufficient to eliminate the officer’s probable cause and any basis for a search.