Another Major Florida Court Addresses Plain Smell of Marijuana As Probable Cause

June 6, 2025 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

A popular legal question in Florida is whether the scent of marijuana alone can serve as probable cause for a police officer to search a vehicle. As Florida has already legalized hemp, the scent of which is indistinguishable from fresh marijuana, some courts have ruled the scent of marijuana alone cannot serve as probable cause for a vehicle search. Baxter v. State, 389 So.3d 803 (Fla 5th DCA 2024)

But another court, the Sixth District Court of Appeal, has just weighed in on the issue of whether the smell of marijuana can serve as probable cause for the search of a vehicle. This article will discuss the Sixth District’s ruling in State v. Simpson and what it means for the future of the “plain smell” doctrine.

According to the U.S. Supreme Court, police officers may perform a search of a vehicle if they develop probable cause that the vehicle, or anything in the vehicle, has been used, is being used, or is about to be used in criminal activity. This is commonly referred to as the “automobile exception” to the Fourth Amendment’s warrant requirement.

In 2024, The Fifth District Court of Appeal’s Baxter decision held that the “plain smell” of marijuana alone could no longer serve as probable cause to search a vehicle. This conflicts with the Second District Court of Appeal’s Owens decision, which ruled that despite hemp’s legality, the scent of marijuana emanating from a vehicle can still provide probable cause to support a search. This is because marijuana itself is still classified as a controlled substance. Owens v. State, 317 So.3d 1218 (Fla 2nd DCA 2021). 

The Florida Supreme Court has not yet weighed in on this contentious issue. But a new ruling from the Sixth District Court of Appeal in Simpson v. State presents a potential middle path for Florida’s highest court, as it provides a more nuanced and context-dependent interpretation of when probable cause may be established on the basis of “plain smell.”

In Simpson, the appellee was present in a “high-crime” area. Officers pulled him over for a traffic violation, smelled what seemed to be fresh marijuana (indistinguishable from hemp), and executed a probable cause search of Simpson’s vehicle on that basis alone. When they did, they found an illegal firearm and other unlawful substances, including cocaine.

Simpson successfully moved to suppress the fruits of the search, citing Baxter‘s holding that the plain smell of marijuana is insufficient to establish probable cause to search an automobile. The trial court agreed and suppressed the contraband in the vehicle, rendering it inadmissible at trial. The trial court reasoned that plain smell is insufficient to establish probable cause.

The Sixth District Court of Appeal reversed the ruling – but did not go so far as Owens in saying that the smell of fresh mairjuana is probable cause to search a vehicle. Instead, the Simpson court ruled that whether the smell of marijuana can serve as the basis for a search depends on the totality of the circumstances surrounding a traffic stop. This includes factors such as:

• The stop occurring in an area well-known for narcotics activity and drug transactions
• The officer’s training, experience, and knowledge of the particular area in which the search is executed 

The Simpson majority argued it did not have to rule on the issue of “plain smell alone,” as the probable cause for the vehicle search was established based not simply on the smell of marijuana emanating from the vehicle, but the circumstances and location surrounding the traffic stop that produced the search.

In sum, Simpson provides a potential middle ground between Baxter and Owens on the issue of plain smell of marijuana serving as probable cause to search a vehicle. While Baxter and Owens created brightline rules, Simpson argues that whether an officer has probable cause based on the smell of marijuana (or hemp) to search a vehicle depends on the totality of the circumstances.

Simpson creates a middle ground by holding that when an officer detects the odor of marijuana (or hemp), their training and experience — combined with the area’s reputation for drug activity — can establish probable cause even if smell alone might not suffice in different circumstances. Whether the Florida Supreme Court will eventually address this issue, and how it will rule, may be significantly influenced by Simpson. 

In the event someone is charged with a marijuana-related offense, it is vital to seek out aggressive and experienced legal counsel as soon as possible. The attorneys at Pumphrey Law have decades of experience fighting to win for clients across Florida who have been charged with marijuana-related crimes.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation. Do Police Have to Record a Confession in Florida?

  Social Share