On October 2, 2025, a Florida appeals court held that the smell of marijuana alone is no longer sufficient to establish probable cause for a search. The court reasoned that the odor of marijuana is indistinguishable from the odor of legal hemp and lawful medical marijuana. Because of these legislative changes, officers must now evaluate the odor in combination with other facts under a “totality of the circumstances” approach before conducting a warrantless search.
About Probable Cause and Marijuana Searches in Florida
For decades, Florida courts applied what was known as the “plain smell doctrine.” Under that doctrine, if a police officer detected the odor of marijuana coming from a person, vehicle, or residence, the officer could treat that odor as probable cause that a crime was being committed. In practical terms, the odor of marijuana opened the door to vehicle searches, person searches, and arrests, even when officers had no additional evidence of criminal conduct beyond what they said they smelled.
The doctrine made sense in an era when all marijuana possession was illegal. However, Florida’s legal landscape regarding cannabis has changed significantly. The legalization of hemp products and the widespread lawful use of medical marijuana introduced a major complication. The odor associated with cannabis now has both lawful and unlawful explanations, and officers cannot distinguish between them based on smell alone. This led courts to question whether odor alone could still reasonably indicate criminal activity.
A key Florida appellate court that had upheld the doctrine just four years earlier has now reversed course, holding that marijuana odor by itself is not probable cause of criminal behavior.
Owens v. State and the Earlier Position on Plain Smell
The Florida Second District Court of Appeal, which covers the greater Tampa Bay region, addressed this issue in 2021 in Owens v. State, 317 So. 3d 1218 (Fla. 2d DCA 2021). In Owens, the court held that marijuana odor continued to support probable cause for a search, even after the legalization of hemp. The court’s reasoning relied heavily on the fact that recreational marijuana remained illegal in Florida. As long as marijuana possession was illegal in most contexts, the court concluded its odor still indicated likely criminal activity.
Under the Pardo rule, this decision effectively bound Florida’s trial courts unless another appellate court issued a contrary ruling. That contrary ruling arrived three years later.
Baxter v. State Signals a Shift
In 2024, the Fifth District Court of Appeal addressed the same issue in Baxter v. State, 389 So. 3d 803 (Fla. 5th DCA 2024). Unlike Owens, Baxter concluded that the odor of marijuana alone could no longer serve as probable cause because of the legalization of hemp and medical marijuana. The court observed that the plain smell doctrine requires that the sensory perception be clearly indicative of criminal activity. Since cannabis odor now frequently originates from lawful sources, odor alone no longer satisfies that requirement.
From that point forward, Florida had two appellate courts in direct tension with each other. Some trial courts continued following Owens, while others felt guided by Baxter. That split in the law set the stage for the decision that came next.
Williams v. State Changes the Legal Landscape
On October 1, 2025, in Darrielle Ortiz Williams v. State, the Second District Court of Appeal revisited its earlier Owens decision. The court ultimately decided to overrule Owens and align itself with Baxter.
In Williams, the defendant was a passenger in a vehicle stopped for a traffic violation. As officers approached the car, they reported smelling cannabis. They disagreed about whether the odor was fresh or burnt, but all agreed that it was noticeable and intensified as they neared the vehicle and when the window was rolled down. Based solely on what they believed to be the odor of illegal marijuana, officers ordered both the driver and Williams out of the car and proceeded to search. Additional controlled substances were discovered, and Williams was arrested.
Williams happened to be on probation at the time, and his probation was later revoked based in part on the evidence obtained during the search. Before the violation of probation hearing, he moved to suppress the evidence, asserting it was obtained illegally as “fruit of the poisonous tree.” His argument rested on the changing legal status of marijuana and hemp. He contended that odor alone no longer clearly indicated illegal conduct and thus could not support probable cause.
The trial court denied the motion, explaining that it was bound by Owens. The evidence was admitted, and Williams’s probation was revoked. Williams then appealed and renewed the same argument before the Second District Court of Appeal.
The Second DCA Overrules Owens
The appellate court took the opportunity to reconsider its previous position. After reviewing legislative changes and developments in other appellate courts, the Second DCA expressly overruled Owens. It held that the plain smell of marijuana, standing alone, no longer establishes probable cause.
The court explained that because of significant statutory amendments redefining and regulating cannabis, the mere odor of cannabis cannot make it immediately apparent that a substance is illegal contraband. The odor may still be considered, but only as part of a larger totality-of-the-circumstances analysis. In other words, it is now simply one factor among many, not a shortcut to probable cause.
However, the court did not exclude the cannabis odor from police consideration altogether. Officers may still consider odor when determining what other facts they need to investigate further. What they can no longer do is justify a search on odor alone.
The Good Faith Exception Spares the Conviction
Although the Second DCA changed the law going forward, Williams himself did not benefit. The court applied the good faith exception, concluding that officers reasonably relied on existing, binding precedent when they conducted the search. Since Owens was controlling law at the time, suppression was not required.
This aspect of the decision is significant. The new rule applies prospectively, but prior searches performed in reliance on Owens are unlikely to be undone solely because the doctrine has now been rejected.
Certified Question for the Florida Supreme Court
The Second DCA also certified the following question 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 certification invites the state’s highest court to issue a uniform statewide ruling. If the Florida Supreme Court accepts the case, its decision will become binding on all courts in Florida. Although the current trend suggests skepticism toward the plain smell doctrine, the ultimate statewide answer remains pending.
The Current State of the Law After Williams
At present, due to the Pardo rule and the positions taken by the Second and Fifth District Courts of Appeal, it is highly unlikely that odor alone will be deemed sufficient probable cause anywhere in Florida. The First, Third, Fourth, and Sixth District Courts of Appeal have expressed doubt about odor-only probable cause, though they have not issued definitive holdings identical to Williams and Baxter.
The key takeaway is that no Florida appellate court currently recognizes the odor of marijuana, by itself, as probable cause to search. Courts are instead moving toward a model in which odor is simply part of a broader totality-of-circumstances inquiry.
What Counts Beyond Odor Now
Because odor no longer carries automatic weight, courts will now expect to see additional indicators of criminal conduct before probable cause exists. Officers will rely more heavily on observations of impairment, visible contraband, suspicious behavior, inconsistent statements, or admissions. Each case will turn on its own facts rather than a single sensory perception.
Effect on Marijuana-Related Cases and Probation Matters
This shift carries major consequences for defendants charged with marijuana offenses, particularly those on probation. Many violation of probation findings have historically been based on searches triggered only by an alleged cannabis odor. Under the new rule, similar searches conducted today may be vulnerable to suppression challenges.
However, the good faith exception means past cases conducted under Owens are not automatically void.
Is the Plain Smell Doctrine Dead in Florida?
For marijuana, it very likely is. Courts have made clear that odor alone is no longer viewed as clearly indicative of illegal conduct. That conclusion flows directly from the legalization of hemp products and lawful medical cannabis.
Still, the future may provide additional developments. Other district courts may weigh in, and the Florida Supreme Court may ultimately decide the issue outright. Until then, practitioners should assume that odor, by itself, will rarely satisfy constitutional requirements for a search.
Call Musca Law 24/7/365 at 1-888-484-5057 for your FREE consultation.
The ruling in Williams marks one of the most important developments in Florida search-and-seizure law in recent years. It reflects the judiciary’s recognition that cannabis odor now has both lawful and unlawful explanations and that probable cause demands more than speculation. The smell of marijuana remains relevant, but it is no longer decisive.
For anyone charged after a search based primarily on odor, the legality of that search is now a critical issue that may determine whether evidence can be used at all.
Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation.
We have 35 office locations throughout the state of Florida and serve all counties in Florida, including Jacksonville, Miami, Tampa, Orlando, St. Petersburg, Hialeah, Port St. Lucie, Cape Coral, Tallahassee, Fort Lauderdale, the Florida Panhandle, and every county in Florida.