Everything to Know About the Plain Smell Doctrine in Florida

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

In Florida, the “plain smell doctrine” is one of the most discussed and controversial areas of criminal law. However, it is often not well understood. This blog will discuss the state of the plain smell doctrine in Florida by answering frequently asked questions about this key legal issue.

#1 – What is the “plain smell doctrine”?

The “plain smell doctrine” is a legal principle that allows law enforcement officers to establish probable cause to search a vehicle (or in some cases, a person) if they detect the odor of illegal substances – usually marijuana – without needing a warrant.

#2 – Why is the “plain smell doctrine” so controversial?

The “plain smell doctrine” has been especially controversial since Florida legalized hemp and medical marijuana. Prior to these developments, the odor of marijuana (which remains illegal for recreational use) was universally considered an indicator of criminal activity.

But many argue this is no longer the case, as the “scent of marijuana” now has non-criminal explanations. This has led to controversy, as law enforcement is relying on an indicator of what may be legal activity as probable cause that a crime is occurring (justifying the search).

#3 – Have Florida courts historically recognized the “plain smell doctrine”?

Yes, courts have historically recognized the “plain smell doctrine,” because the distinct odor of a controlled substance generally establishes probable cause of criminal activity sufficient to justify a search of a vehicle. However, this is becoming increasingly complicated with the legalization of hemp and medical marijuana in Florida.

#4 – Can the smell of marijuana still serve as probable cause for a search in Florida?

The answer is – it depends. Florida’s District Courts of Appeal are currently split on this issue. The two primary cases that have addressed this are Baxter v. State, 389 So.3d 803 (Fla 5th DCA 2024) and Owens v. State, 317 So.3d 1218 (Fla 2nd DCA 2021).

In Owens, the 2nd DCA affirmed that the plain smell of marijuana continues to serve as probable cause to support a search – despite the legalization of hemp and medical marijuana. Because of the Pardo principle, this was the law throughout Florida until Baxter in 2024.

The 5th DCA’s Baxter ruling was the first to conflict with the 2nd DCA – holding that the scent of marijuana alone can no longer be considered probable cause to support a search, as legal hemp has an indistinguishable odor. Other District Courts of Appeal have since chimed in, including the 6th and 3rd DCAs (Simpson v. State, Wright-Johnson v. State).

#5 – So, it depends where you are in Florida?

Yes. The only DCAs to squarely rule on this are the 2nd and 5th. Thus, all trial courts under the 2nd DCA (Tampa area) are bound by Owens, so “plain smell” of marijuana remains probable cause in that area. All trial courts covered by the 5th DCA (Northeast Florida) are bound by Baxter, meaning “plain smell” is insufficient to establish probable cause.

In the rest of the state, trial courts may decide whether to follow Baxter or Owens. This will be the case until another DCA rules firmly on this question (binding trial courts in that part of the state), or the Florida Supreme Court resolves the issue for the entire state.

For a map showing the geographic coverage of Florida’s District Courts of Appeal, click here.

#6 – What about “plain smell” other drugs?

The scent of marijuana is typically what is in dispute. However, law enforcement may sometimes claim that “plain smell” serves as probable cause for a search for other substances (PCP, burning crack, etc.). 

In those cases, the key question is often whether a noncriminal explanation can also make sense of the smell. Though officers may argue their training and experience compelled them to believe a particular odor was an illicit substance, the defense may move to suppress the fruits of a search on the basis that a “plain smell” with a legal explanation is not probable cause.

#7 – What is the role of K-9 sniffs in “plain smell”?

In cases where drugs other than marijuana are found in a vehicle based on “plain smell,” the smell isn’t plain to human beings. K-9 sniffs are often the reason for this, as man’s best friend has a better nose than we do – and the police know it.

Prior to a recent decision by the 5th DCA, a K-9 sniff (drug-detecting dog used by the police) was sufficient to establish probable cause for a vehicle search. But the 5th DCA ruled in January 2025 this is no longer the case, if the K-9 has been trained to sniff for marijuana.

The court reasoned this is because the K-9 trained to smell illegal marijuana may also alert to legal substances, such as hemp (or medical marijuana). Thus, a K-9 “alert” alone cannot serve as probable cause to search a vehicle for drugs if the K-9 has been trained to sniff for marijuana. Ford v. State, 400 So.3d 838 (Fla. 5th DCA 2025).

For more information about the Ford decision and its impact on the plain smell doctrine, click here.

#8 – How does “plain smell” apply if I am a medical marijuana cardholder?

The fact that someone is a medical marijuana cardholder does not automatically mean that they are immune from a vehicle search based on “plain smell.” This is partly because under Florida law, someone must keep medical marijuana in its container at all times while in a vehicle.

Florida law prohibits smoking or vaping medical marijuana while in a motor vehicle, even if someone has a medical marijuana card. As a result, someone showing their medical marijuana card does not by itself bar law enforcement from searching the vehicle under circumstances where the search would otherwise be lawful.

#9 – How does “plain smell” differ from the “plain view doctrine”?

“Plain smell” is an extension of the “plain view doctrine.” Ford at 844. If law enforcement is legally present and sees evidence that is “immediately apparent” in its “incriminating character,” they are authorized to seize the item. Sawyer v. State, 842 So. 2d 310, 312 (Fla. 5th DCA 2003)

“Plain smell” operates in the same manner – but it hinges on what an officer smells rather than sees. The strongest challenges to the “plain smell doctrine” in marijuana cases have relied upon the argument that because the odor of marijuana is no longer obviously criminal (could be hemp or medical marijuana), this cannot alone serve as probable cause (Baxter).

#10 – Can officers still arrest me for smelling like marijuana?

Not without any other evidence, as there would be a lack of probable cause of criminal activity. Arrests based solely on odor are very rare now (and not legally justified) because marijuana can be possessed for medical use and hemp is legal. 

#11 – Can I challenge a search based on the “plain smell doctrine”?

Yes, a search based on “plain smell” of marijuana alone (or another substance with a scent that has a noncriminal explanation) can and should be challenged. An experienced and aggressive Florida criminal defense attorney can move to suppress any unlawful substances obtained from a person or vehicle if the search was based only on “plain smell.”

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.

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