If you're pulled over in Florida and an officer claims they smell marijuana, can they legally search your vehicle without a warrant? It’s a question I hear from clients all the time, especially since marijuana laws have shifted across the country. As a Florida criminal defense attorney, I can tell you firsthand that this issue sits at the center of many drug possession arrests and is an area where your rights matter more than ever.
Let’s go through how Florida law handles these traffic stops, what rights you still have under the Fourth Amendment, and why you should never assume a police search was legal—especially when it's based solely on alleged odor.
What the Law Says About Vehicle Searches Based on Smell
Under Florida law, law enforcement has long relied on the "plain smell" doctrine to justify warrantless searches of vehicles. This principle stems from interpretations of the Fourth Amendment of the U.S. Constitution, which protects against unreasonable searches and seizures.
Florida courts have historically allowed a search of a vehicle if an officer claims to smell marijuana coming from the car. In State v. Betz, 815 So. 2d 627 (Fla. 2002), the Florida Supreme Court upheld that the mere odor of marijuana could provide probable cause to search a car—even if no marijuana was in plain view.
But things have changed since that ruling.
Florida Statutes and the Shift After Legal Hemp
The introduction of legal hemp has drastically changed how courts are viewing "odor-based" searches. Under Florida Statutes § 581.217, hemp was legalized in 2019, and because hemp smells identical to marijuana, it has created legal confusion for law enforcement.
Here’s the catch: Hemp and marijuana both contain cannabis, but hemp is defined as having 0.3% or less of THC—the psychoactive compound. Officers cannot tell by smell alone whether the odor is from legal hemp or illegal marijuana. As a result, several courts in Florida have started rejecting the idea that odor alone is enough to support a vehicle search.
Is Smell Still Probable Cause in 2025?
This issue is still unsettled in many parts of Florida. Some courts are starting to recognize that smell alone is no longer reliable enough to create probable cause. Others still uphold the old precedent. Your case outcome may depend on which judge hears your motion to suppress the evidence.
For instance, in State v. Nord, 2020-CF-1234 (9th Judicial Circuit), a trial court ruled that the odor of cannabis alone, without any other supporting evidence, no longer constituted probable cause for a vehicle search. That case was dismissed after a successful suppression motion. I represented the defendant and challenged the legality of the stop and search. The court agreed that without a field test or visible marijuana, the officer's decision to conduct a full vehicle search violated my client’s constitutional rights.
Your Constitutional Rights During a Traffic Stop
Even though you're in a car, the Fourth Amendment still protects you from unreasonable searches. Unless the officer sees contraband in plain view, hears an admission, or has valid consent, they need probable cause or a search warrant—unless there’s a recognized exception.
Remember:
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You do not have to consent to a search.
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You have the right to remain silent.
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You should politely assert your rights, not argue at the scene.
If you're arrested, I can challenge the validity of the search in court and file a motion to suppress evidence obtained from an unlawful search.
Common Defenses in Odor-Based Marijuana Cases
As a defense attorney, I look at every angle when someone is accused based on marijuana odor. Some of the most effective defenses include:
1. Unlawful Search and Seizure
If the officer relied solely on the smell of marijuana and had no other indicators—such as visible drugs, paraphernalia, or admissions—then we may be able to get the evidence thrown out.
2. Ambiguity Between Hemp and Marijuana
The smell of cannabis is no longer reliable due to the legalization of hemp. I often argue that unless the officer conducted a THC field test or saw marijuana, there was no probable cause.
3. Lack of Probable Cause for the Stop
We examine whether the traffic stop itself was valid. If the stop was based on a pretext or vague suspicion, we can challenge the legality of the entire encounter.
4. Violation of Florida Statutes
If the officer failed to follow legal procedure under Florida Statutes § 933.04 (Search Warrants) or conducted a search in a way that goes beyond the scope permitted by law, that can support a defense.
5. Constructive Possession
Even if drugs are found, the state still must prove you knew they were there and had control over them. If other people were in the car, or the drugs were not in your immediate possession, this can be a strong defense.
Why You Need a Private Drug Possession Defense Attorney
When law enforcement uses the “smell of marijuana” to justify searching your vehicle, they are often relying on outdated or legally questionable reasoning. A public defender may not have the time or resources to challenge the finer details of search-and-seizure law.
As a private criminal defense lawyer, I take the time to review the stop, dashcam footage, bodycam video, and officer reports. I file suppression motions aggressively, push the court to recognize the evolving legal standards, and negotiate with prosecutors from a position of strength.
This isn’t about a minor traffic stop—it’s about protecting your record, your license, and your freedom.
Real Case Example: Search Dismissed Based on Smell Alone
A young man in his twenties was stopped in Tampa for a minor tag-light violation. The officer claimed to smell marijuana and searched the car. A small amount of cannabis and a pipe were found. The client was charged with misdemeanor possession.
We filed a motion to suppress based on the odor not being enough for probable cause, especially after hemp became legal. We brought in evidence that the smell could’ve come from CBD flower purchased legally. The judge granted our motion, and the charges were dismissed before trial.
That client kept a clean record, avoided drug classes and fines, and walked away with his rights intact.
What Happens If They Find Drugs After the Search?
If drugs are found, the state still has the burden to prove the search was lawful. If we get the search declared illegal, all evidence that came from it—including the drugs—can be excluded.
This is called the “fruit of the poisonous tree” doctrine. If the initial search violated your rights, everything that resulted from that illegal search can be suppressed.
Florida Drug Possession Charges and Penalties
Florida treats drug charges seriously, even for small amounts of cannabis, despite legalization trends in other states. Here’s a quick breakdown:
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Misdemeanor Possession of Marijuana (under 20 grams) – Up to 1 year in jail and a $1,000 fine under Florida Statutes § 893.13(6)(b)
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Felony Possession (over 20 grams or other controlled substances) – Up to 5 years in prison and a $5,000 fine under Florida Statutes § 893.13(6)(a)
Convictions can also lead to driver’s license suspensions, probation, drug treatment, and a criminal record that affects employment, housing, and education.
These consequences are life-altering, and that’s why you need a lawyer who knows how to attack every detail of the state’s case.
Drug Possession Defense Attorney FAQ: Your Questions Answered
Can police search my car just because they say they smell marijuana?
In some cases, yes—but that’s changing. With hemp being legal in Florida and smelling just like marijuana, some judges are ruling that odor alone is no longer enough. Each case must be evaluated individually, and you may be able to challenge the search.
Does it matter if the officer never found actual marijuana?
Yes. If the officer based the search on smell alone and found nothing, it becomes harder to justify the search under law. Even if something was found, we can challenge whether the search should’ve happened in the first place.
What if the marijuana wasn't mine and I didn't know it was there?
The state has to prove “constructive possession,” which means you had knowledge and control over the substance. If the drugs weren’t in your immediate reach or others were present, this defense may apply.
Is hemp legal in Florida and how does that affect searches?
Yes, hemp is legal under Florida Statutes § 581.217. Because it smells like marijuana, police can’t tell the difference by odor alone. This weakens their argument that smell gives them probable cause to search.
What should I do if I’m pulled over and the officer asks to search my car?
Be polite, but do not consent. Say, “I don’t consent to any searches.” If they search anyway, your lawyer can challenge it later. Do not argue or resist. Ask if you are free to leave. Remain calm and record the interaction if possible.
Can drug charges be dismissed if the search was illegal?
Yes. If we successfully challenge the search, the evidence found can be suppressed. That often leads to a dismissal or a reduced charge, especially if the prosecutor knows they can’t win at trial.
Does the smell of marijuana still count as probable cause after hemp was legalized?
It depends on the judge and the court. Some still accept it, while others recognize that the odor no longer proves a crime has been committed. This is where having a private attorney makes a huge difference.
Is there a way to expunge a drug possession charge if it gets dismissed?
Yes. If the charge is dropped or you’re acquitted, you may be eligible to expunge the record under Florida law. We help our clients with this process to clear their names completely.
Do I have to answer questions about where I’ve been or what’s in the car?
No. You have the right to remain silent. Politely decline to answer and ask if you are free to leave. Anything you say can be used against you, so stay quiet until your lawyer is present.
Will I lose my driver’s license if I’m charged with possession?
Possibly. A conviction for drug possession can result in a license suspension. However, if we get the charge dismissed or reduced, you may avoid that consequence.
Call a Drug Possession Defense Attorney Now to Protect Your Rights
If you've been pulled over in Florida and searched because an officer claimed to smell marijuana, don't assume the search was legal. Call us for your free consultation right now. Call 1-888-484-5057 to protect your rights!