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In a welcome opinion that proves courts can be reasonable when addressing legal and policy shifts regarding cannabis, the Florida Second District Court of Appeal ruled on October 1, 2025 that the mere smell of cannabis, standing along (ie, without other factors), does not establish probable cause. I recently discussed the issue of probable cause and cannabis with my friend and colleague Phil Dixon in a podcast you can watch here.

The Cornell Legal Information Institute has an excellent summary of probable cause:

“Probable cause is a requirement found in the Fourth Amendment that must usually be met before police make an arrest, conduct a search, or receive a warrant. Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed (for an arrest) or when evidence of the crime is present in the place to be searched (for a search).“

Essentially, law enforcement cannot obtain a search warrant or conduct a warrantless search unless there is a reasonable basis to believe that a crime has been committed and/or that evidence of the crime is present. What constitutes “reasonable basis” is fact-specific and often the subject of intense litigation in the criminal courts.

Prior to the legalization of hemp under federal law and the legalization of marijuana under the laws of many states, including Florida, the mere smell of cannabis was deemed to be sufficient probable cause that a crime had been committed, namely, the crime of possession of marijuana. When possession of any amount of cannabis material was illegal, the odor of cannabis was a reasonable basis for law enforcement to believe that a crime had been committed and that evidence of the crime was present.

However, in the wake of broad cannabis legalization through the 2018 Farm Bill and various state laws legalizing medical and/or adult cannabis use, it is common sense that the mere smell of cannabis can no longer be evidence of a crime since cannabis is lawful under certain circumstances. In addition to smell, it makes sense that law enforcement needs some additional evidence of a crime than the mere smell. Unfortunately, this “common sense” updating of the caselaw regarding probable cause has not been as widespread as it should be. (Notably, the North Carolina Supreme Court is addressing this issue after the state’s Court of Appeals ruled in a garbled opinion that the smell of cannabis does establish probable cause despite the legalization of hemp.)

The Florida Second District Court of Appeal got it right on Wednesday, finding 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. We accordingly hold that, under the updated statutory text, the 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.“

The Court goes on to explain its ruling. Unfortunately, the Court was not unanimous in its opinion, with one dissenting judge writing: “I am equally hopeful that the Florida Legislature is aware of the dilemma that was inadvertently caused by the widespread acceptance of hemp and legalization of medical marijuana[.] I invite the Legislature to review this issue and to consider that its recent legislation legalizing cannabis for medical purposes has made it easier for nefarious individuals to engage in criminal activity. Because I believe this is a great injustice to the citizens of Florida, I dissent from the majority’s conclusion that we have no choice but to recede from the ‘plain smell’ doctrine.” We expect that this ruling will be appealed by the State, and we hope that the majority’s reasoning will hold with the state’s Supreme Court.

While this ruling does not establish precedent for other states, its underlying logic should be persuasive to other courts as they grapple with this issue. We hope other courts will follow the Second District Court of Appeal and elevate logic over knee-jerk and outdated approaches to cannabis policy.

Here is a copy of the ruling:

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Florida Appeals Court Rules Smell of Cannabis Insufficient to Establish Probable Cause