Does a K-9 Sniff Establish Probable Cause to Search Vehicle? Florida Court Says No

June 9, 2025 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

A major Florida court recently answered a common question – can a K-9 (police dog) sniff of a vehicle that alerts an investigating officer to the potential presence of drugs serve as probable cause for a search? The Fifth District Court of Appeal says no. This article will discuss the Fifth DCA’s Ford v. State ruling and what it means for the “plain smell” doctrine in Florida. Ford v. State, 400 So.3d 838 (Fla. 5th DCA 2025).

Under the automobile exception to the Fourth Amendment, law enforcement officers are permitted to search vehicles upon developing probable cause that a vehicle itself or its contents have recently been used, are being used, or are about to be used in the commission of a crime. Carroll v. United States, 267 U.S. 132 (1925). 

The automobile exception applies to any of the following:

• Passenger cars and pickup trucks
• Vans and SUVs
• Commercial trucks
• Motorcycles
• RVs and motorhomes
• Rental cars
• Borrowed vehicles
• Trailers (if attached to another vehicle and mobile)

In Florida, a common question is whether the “plain smell” of illegal substances can be used to establish probable cause to search a vehicle. Courts have generally held that if an officer detects the plain smell of a clearly illegal substance, this can suffice as probable cause. 

However, if a scent has both a potentially legal or illegal explanation (such as illegal marijuana and legal hemp, which have the same odor), officers must eliminate any legal explanation for the smell before it is used as probable cause to search an automobile. Baxter v. State, 389 So.3d 803 (Fla 5th DCA 2024)

Months after Florida’s Fifth District Court of Appeal decided Baxter – which held that the “plain smell” of marijuana can no longer alone serve as probable cause to search a vehicle (due to its indistinguishability from hemp) – the court decided Ford v. State. Ford v. State, 400 So.3d 838 (Fla. 5th DCA 2025).

In Ford, the appellant (Ford) was pulled over by officers. A K-9 was ultimately called to sniff for the potential presence of controlled substances. The dog indicated to the officers that he detected illegal drugs, and officers proceeded to search the vehicle on the basis of the alert. Officers discovered phenethylamines and marijuana, and arrested Ford.

On appeal, Ford cited the 5th DCA’s Baxter ruling, arguing that the K-9 could not have known the difference between the legal scent of hemp and the illegal scent of marijuana in the vehicle. Ford contended that the K-9’s alleged detection of an odor emanating from his vehicle did not provide any actual evidence that he was engaged in unlawful activity.

The 5th DCA agreed. Given Baxter’s recognition of the indistinguishable scents of marijuana and legal hemp, the court reasoned that the K-9 could not have definitively established that illegal marijuana was present in the vehicle at the time that the search was conducted. 

The court added that because the K-9 cannot speak to the officers and was trained to alert them to the scent of marijuana (among other drugs), there is no way to tell if the K-9 smelled legal hemp or illegal marijuana. Since “sniff alone” was the basis for establishing probable cause to search Ford’s vehicle, the court ruled that officers had erred in searching it. 

However, the evidence collected by officers was still permitted to be used against Ford, because of the “good faith exception” to the Fourth Amendment. This is due to the fact that the search of Ford’s vehicle occurred before the 5th DCA’s Baxter decision was issued. 

At the time of Ford’s arrest, the 2nd DCA’s Owens decision – which held the smell of marijuana could indeed serve as the probable cause basis to search a vehicle – was binding across Florida. As officers relied upon Owens, Ford’s conviction was upheld. 

However, the 5th DCA made clear that in the future, a K-9 sniff alone indicating the presence of marijuana does not serve as probable cause to search a vehicle. “Going forward, that dog won’t hunt,” the opinion remarked.

Though the Ford decision centered around marijuana, this raises various questions about K-9 sniffs more generally serving as a probable cause basis to search a vehicle. Hemp and marijuana smell indistinguishable according to Baxter – and police may not know if (and what type of) drugs are in a vehicle at the time of a K-9 sniff. 

These facts beg the question – can a K-9 sniff alone ever serve as probable cause to search a vehicle, in the absence of additional evidence of unlawful activity? While Ford does not go so far as to explicitly answer this question, it is a step away from “plain smell” providing probable cause for an automobile search – unless the odor is distinctly from an illegal substance that officers have eliminated all lawful explanations for. 

If someone is arrested and formally charged in Florida as a result of an automobile search that stemmed from “plain smell,” it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

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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