North Florida’s Highest Court Rules on Plain Smell Doctrine and Probable Cause for Vehicle Searches

November 11, 2025 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

Florida’s 1st District Court of Appeal declines to address the‘plain smell doctrine’ when asked, rules the police had probable cause to search the defendant’s vehicle on other grounds.

In Florida, one of the most intriguing legal questions debated by courts is when probable cause has been developed to search a vehicle. This is a fluid standard, and as a result, many cases are decided on this issue every year.

Unlike homes or other items belonging to a defendant, officers often do not need a warrant to perform a search on a vehicle. Though law enforcement cannot perform a search of a vehicle whenever they please, this is permitted so long as probable cause of criminal activity exists within the vehicle. This is called the “automobile exception” to the Fourth Amendment.

Note: Probable cause exists when, under the “totality of the circumstances,” law enforcement officers have facts and reasonably trustworthy information sufficient to lead a reasonable person to believe that a crime has been, is being, or will be committed — and that the person or place to be searched is connected to that crime. Illinois v. Gates, 462 U.S. 213 (1983)

The question of what constitutes “probable cause” has an evolving answer. This is because, with changes in state law (e.g. legalization of certain substances that were previously criminalized), observations that would have previously allowed police officers to develop probable cause of a crime may not anymore.

A key current issue in the discussion in Florida is whether the plain smell of marijuana alone can justify a vehicle search (based on probable cause). Florida has six District Courts of Appeal, all of which have addressed this either directly or indirectly. However, just two of these courts have ruled squarely on the issue.

Florida’s 2nd District Court of Appeal (Greater Tampa area) handed down a landmark ruling in October 2025, Darrielle Ortiz Williams v. State, — So.3d —- (Fla. 2d. DCA, October 1, 2025). The 2nd DCA ruled that the odor of marijuana is no longer probable cause to search a vehicle in Florida.

The 2nd DCA reversed its previous ruling four years earlier, Owens v. State, 317 So. 3d 1218 (Fla. 2d. DCA 2021), which held the opposite. The 2nd DCA reasoned in Owens that because marijuana remained illegal for recreational use in Florida, its odor continued to serve as probable cause that a crime had occurred, was occurring, or was about to occur (illicit drug activity).

In Williams, the 2nd DCA backtracked. Citing the legalization of hemp and medical marijuana (both of which have indistinguishable odors from recreational marijuana), the 2nd DCA held that the odor of marijuana was no longer “apparently incriminating” (as it had lawful alternative explanations). Thus, “plain smell” is no longer probable cause to search a vehicle in Tampa.

The other DCA to squarely address this issue post-hemp and medical marijuana legalization, Florida’s 5th District Court of Appeal, reached the same conclusion (Baxter v. State, 389 So.3d 803 (Fla 5th DCA 2024)). For the same reasons as Williams, the court found that the odor of marijuana alone could no longer serve as probable cause to search a vehicle.

Notably, both courts embraced a “totality of the circumstances” approach. Essentially, the courts held that the odor of marijuana (or hemp) could not by itself authorize a law enforcement search of a vehicle based on probable cause. But combined with other factors (e.g. driver seems to be under the influence, high-crime area), odor can still be a component of probable cause.

Though the plain smell doctrine is under attack in the state, a common question from defendants in Tallahassee and North Florida is whether it still applies in this region. The answer, technically, is yes – but potentially not for long. 

Let’s look at the last time Florida’s 1st District Court of Appeal addressed the plain smell doctrine in the context of vehicle searches: Hatcher v. State, 342 So. 3d 807 (Fla. 1st DCA 2022).

KEY CASE: Hatcher v. State, 342 So. 3d 807 (Fla. 1st DCA 2022)

In Hatcher, the defendant (Hatcher) was stopped for driving erratically. When an officer pulled over Hatcher, he immediately smelled the odor of burnt marijuana emanating from his vehicle. Asked if there was any marijuana in his van, Hatcher said that he had smoked “a blunt” earlier, but nothing remained.

The officer called for backup, including a K-9 officer to conduct a drug sniff. The K-9 was trained to detect cannabis, cocaine, heroin, methamphetamine, and MDMA (also known as ecstasy), but could not distinguish between hemp and marijuana, according to the officer. 

When the K-9 officer alerted them to the presence of drugs, officers conducted a search of the vehicle based on probable cause of criminal activity. They discovered a bag of pills believed to be MDMA and a scale with leafy green residue on it (consistent with marijuana).

Hatcher was charged with various offenses, including possession of a controlled substance (the MDMA pills) and possession of drug paraphernalia (for the scale with the ‘leafy green’ residue on it). He was convicted on all counts, and appealed to the 1st DCA – Tallahassee and North Florida’s highest court.

One of Hatcher’s arguments was that the “plain smell” of marijuana was not probable cause. This was pre-Williams and Baxter, so Florida continued to recognize the plain smell doctrine at the time Hatcher was convicted. Nevertheless, Hatcher asserted that the drug-sniffing K-9 (nor the officer) could not discern between marijuana and legal hemp, so there was no probable cause.

Before trial, Hatcher moved to suppress the evidence recovered from his vehicle on this basis (preventing it from being used against him at trial), which was denied by the trial judge. Hearing that same argument on appeal, the 1st DCA rejected it and affirmed Hatcher’s convictions. The 1st DCA held that law enforcement had probable cause to search the vehicle:

“Viewed in the appropriate context, the record amply supported the trial court’s determination that probable cause existed to search Hatcher’s van. The officer who conducted the stop had eleven years of experience, including several prior traffic stops and arrests that involved the use of marijuana in a vehicle. He had been trained to identify marijuana by sight and smell. The officer stopped Hatcher at 3:00 a.m. because of his erratic driving.”

“When asked about the smell of burnt marijuana and whether there was any marijuana inside the van, Hatcher admitted that he had just smoked a blunt and discarded it before the traffic stop. The officer believed that ‘blunt’ meant a marijuana cigarette, not a hemp cigarette. The officer also noticed that Hatcher’s demeanor resembled someone who was under the influence, as he was unusually relaxed and lethargic despite having been pulled over and admitting to not having a valid driver’s license.”

Essentially, the 1st DCA ruled that the “totality of the circumstances” gave police probable cause to search Hatcher’s van. Law enforcement did not rely solely upon the odor of marijuana to do so, making Hatcher’s argument as to the “plain smell doctrine” inapplicable:

“Still, we need not resolve whether the smell of marijuana alone remains sufficient to establish probable cause. We must instead consider whether there was probable cause to justify the search based on the totality of the circumstances…”

“Based on the officer’s observations, training, and experience, as well as Hatcher’s statements and demeanor, the officer reasonably believed that Hatcher was under the influence of marijuana he had smoked while driving. Indeed, the trial court noted that the officer ‘would have been derelict had he not stopped the vehicle, had he not initiated the investigation, and had he not performed in the manner he described.’”

Notably, the 1st DCA did not defend the viability of the plain smell doctrine in the wake of hemp and medical marijuana legalization. Instead, it declined to evaluate whether plain smell was still probable cause – because in Hatcher’s case, more than “plain smell” served as the basis for the vehicle search.

Though Hatcher is the last time the 1st DCA addressed “plain smell” in the context of vehicle searches, the court voiced clear skepticism of the plain smell doctrine in an October 2025 case: Hall v. State, Fla. 1st DCA (October 8, 2025). For more on Hall v. State, which was decided post-Williams and Baxter, click here.

In sum, Tallahassee and North Florida’s highest court refused to do away with the plain smell doctrine in Hatcher v. State, 342 So. 3d 807 (Fla. 1st DCA 2022). The court acknowledged that the odor of marijuana could have a legal explanation (e.g. legal hemp), but found that this did not defeat probable cause in Hatcher’s case because:

• Hatcher told the officer he’d just smoked a “blunt,” which the officer reasonably inferred to mean marijuana (illegal to drive after smoking)
• Hatcher appeared under the influence at the time (e.g. ‘statements and demeanor’)
• Hatcher was driving erratically before the stop

If none of the above were true in Hatcher – and his vehicle was searched solely based on “plain smell” – that the 1st DCA may have come out the other way. The 1st DCA tacitly conceded that the K-9 could not distinguish between the odor of hemp and illegal marijuana, and that the scent of marijuana itself is no longer inherently incriminating due to potentially legal explanations. 

In essence, Hatcher may have been the “right argument in the wrong case.” For more on the plain smell doctrine, including how every other Florida District Court of Appeal has ruled on this issue post-hemp and medical marijuana legalization, click here.

In the event someone is charged with a drug offense after a vehicle search based on plain smell, 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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