Another Major Florida Court Rethinks Plain Smell Doctrine

October 23, 2025 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

Florida’s 1st District Court of Appeal, the highest court in Tallahassee and Northwest Florida, did not go so far as to reverse the “plain smell doctrine.” However, the court indicated it may do so in a future case.

In Florida, the “plain smell doctrine” has recently been under fire. Following the legalization of hemp and medical marijuana, the odor traditionally associated with use of illegal marijuana is no longer a reliable indicator of criminal activity. As a result, Florida courts have retreated from the “plain smell doctrine.”

Historically, the plain smell doctrine has permitted police to develop reasonable suspicion or probable cause to support a search of a person or vehicle, based only on smelling marijuana. Some Florida courts still technically allow “plain smell” to serve as probable cause. But this is changing rapidly.

Most notably, Florida’s 2nd District Court of Appeal (Tampa area) and 5th District Court of Appeal (Northeast Florida) have now held that the odor of marijuana alone is insufficient for officers to develop probable cause of criminal activity. Darrielle Ortiz Williams v. State, — So.3d —- (Fla. 2d. DCA, October 1, 2025); Baxter v. State, 389 So.3d 803 (Fla 5th DCA 2024)

Both of these decisions were noted because hemp and medical marijuana (both legal) have the same odor as illicit marijuana, “plain smell” is no longer clear evidence of unlawful drug use. Thus, it is not probable cause of criminal activity unless there are other indicators (someone acting suspiciously, high-crime area, etc.).

In the wake of Baxter and Williams, other District Courts of Appeal are likely rethinking their approaches to the plain smell of doctrine. Florida’s 1st District Court of Appeal (which covers Tallahassee and North Florida) is among them – made clear by its recent ruling in Hall v. State. Let’s break it down.

Major New Case: Hall v. State, Fla. 1st DCA (October 8, 2025)

In Hall, the defendant (Hall) was a prison employee who was caught smuggling packages into Bay Correctional Facility. Some packages discovered contained a white crystalline substance, chemically verified to be drugs. The other packages contained a leafy green substance identified by an officer as marijuana, based only on its smell.

The “leafy green” packages were not sent to the Florida Department of Law Enforcement (FDLE) for testing before trial. Thus, the only evidence offered that the packages contained marijuana (as opposed to hemp) was an officer’s testimony as to its odor.

At trial, Hall moved to dismiss the charges for the “leafy green” packages. She argued that the substance was never chemically tested, and that the State’s expert (a separate witness from the officer) could not distinguish between the smell of marijuana and hemp. This shed doubt on the officer’s claim that he could – the only evidence the bags contained marijuana and not hemp.

Critically, Hall did not argue at trial that smell-based identification of the “marijuana” was legally insufficient – which would have been a direct challenge to the plain smell doctrine. Hall simply argued that the officer’s testimony (that he could verify the substance was marijuana by “smell alone,” in light of the expert’s admission) was not credible.

The trial judge denied Hall’s motion to dismiss the charges, claiming the officer’s credibility was an issue for the jury to resolve. Hall was ultimately convicted, including on the counts of alleged smuggling of marijuana, and appealed to the 1st District Court of Appeal.

The 1st District Court of Appeal affirmed Hall’s convictions. However, the court’s reasoning indicated a willingness to find that the “plain smell doctrine” could not survive the legalization of hemp and medical marijuana.

In upholding the jury’s verdict, the 1st DCA stated that Hall failed to preserve the argument at trial that “smell alone” was legally insufficient for a conviction. Although Hall attacked the officer’s credibility when moving to dismiss the charges, she did not assert that “smell alone” was insufficient to identify marijuana as a matter of law:

“Based on the record, Hall did not preserve this argument for appeal. Hall’s argument below did not compare hemp with marijuana to contend that testimony based on smell cannot provide competent, substantial evidence to identify marijuana.”

“Instead, Hall’s argument below contrasted the expert’s testimony that she personally could not smell the difference between marijuana and hemp with Sgt. Head’s testimony that he personally could smell the difference, thus raising ‘questions’ regarding Sgt. Head’s ‘inane super human ability where he can tell the difference’ but the expert cannot.”

Despite affirming Hall’s convictions on these grounds, however, the 1st DCA took a legal detour and examined recent case law on the “plain smell” issue. The court wrote: 

“Hall cites the decisions of our sister courts in Baxter v. State, 389 So. 3d 803 (Fla. 5th DCA 2024), and Campbell v. State, 407 So. 3d 558 (Fla. 2d DCA 2025), concluding the legalization of hemp means that the smell of marijuana can no longer support a finding of reasonable suspicion for an investigatory detention.”

“By Hall’s logic, if the smell of marijuana is insufficient evidence for reasonable suspicion of illegal activity, it follows that smell is insufficient to identify marijuana beyond a reasonable doubt at trial.”

At no point did the 1st DCA disagree with Hall’s appeal argument. In fact, the 1st DCA subtly lamented the fact that the “plain smell” issue was not raised at trial, despite prompting by the trial judge:

“Indeed, Hall was prompted by the trial court to discuss recent changes in the law but still failed to raise the argument below. Accordingly, the issue was not preserved for appeal.”

However, the 1st DCA indicated they could not use Hall’s case to strike down the “plain smell” doctrine. This is because her argument in the lower court (as to the officer’s credibility, rather than the sufficiency of legal sufficiency of “plain smell” to identify marijuana) was “too far removed” from her argument on appeal:

“In other words, Hall’s argument expressly addressed the weight of Sgt. Head’s testimony rather than its legal sufficiency. This is too far removed from the argument on appeal—that smell alone is legally insufficient to identify a substance as marijuana (instead of hemp) beyond a reasonable doubt.”

The 1st DCA went on to say that because the “plain smell” issue was unpreserved, it had to be reviewed for fundamental error. Fundamental error means Hall’s trial would have been made so unfair by the judge’s ruling as to violate her due process rights. The 1st DCA held that Hall’s conviction did not stem from fundamental error, because:

“[M]arijuana and hemp are both illegal contraband that would support Hall’s conviction. … For cases reviewed by this Court, an unpreserved challenge to the sufficiency of the evidence only constitutes fundamental error ‘when there is insufficient evidence that a defendant committed any crime.’ … Accordingly, because there was evidence that, at the very least, Hall introduced contraband into a state correctional facility, her conviction is not fundamental error.”

Put simply, the court recognized that even if the “leafy green” substance Hall was found with was hemp, hemp is still not permitted in prisons. The court then concluded:

“Because the issue on appeal is unpreserved and not fundamental error, the judgment is AFFIRMED.”

It is this paragraph that makes the 1st DCA’s Hall decision especially intriguing. The court outright states that a reason for its affirmation of Hall’s convictions is the fact that the “plain smell” issue was unpreserved. The inclusion of this detail should be a signal that the 1st DCA is open to ending the plain smell doctrine in Tallahassee and Northwest Florida, in another case.

It is possible that the only reason the “plain smell doctrine” survives today in the jurisdiction the 1st DCA covers is because Hall did not make a legal argument against it at trial. Even though Hall may have still been convicted, as the court observed, the jury’s specific finding that Hall smuggled in marijuana would have been legally impermissible.

This would have had far-reaching implications. If the 1st DCA had ruled the odor of hemp and illicit marijuana could not be distinguished, the plain smell doctrine likely would have been dead in the 1st DCA. 

 Even though Hall did not involve a pat-down or a car search based on “plain smell” (like Baxter and Williams did), the fundamental issue was the same. Is illegal marijuana identifiable by smell alone (without additional lab testing), or could it also be legal hemp?

If the 1st DCA hears a direct challenge of the legal sufficiency of the plain smell doctrine that was preserved at trial, Hall indicates the court may follow the 2nd and 5th DCAs in dispensing with it. If marijuana and legal hemp have indistinguishable odors, that odor ceases to be probable cause of criminal activity. 

For now, the plain smell doctrine remains intact in Tallahassee and Northwest Florida. But this appears to be because the 1st DCA has not yet heard a case allowing them to do away with it, rather than because of the court’s continued support of the doctrine. Hall did not get rid of the plain smell doctrine, but the ruling indicates it may not last much longer.

In the event someone is charged with a marijuana-related offense or is searched based on “plain smell” of marijauna or another substance, 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.

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