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Florida’s Second DCA Limits Plain Smell Cannabis Search Doctrine
On October 1, 2025, Florida’s Second District Court of Appeal issued an en banc opinion in Williams v. State, No. 2D2023-2200 (Fla. 2d DCA October 1, 2025) that marks a turning point in search and seizure law. The court held that the odor of cannabis, by itself, is no longer enough to establish probable cause for a search. This ruling aligns Florida law with modern statutory changes surrounding cannabis and underscores the need for defense attorneys to challenge plain smell cannabis searches based solely on smell.
Background of the Case
Darrielle Ortiz Williams was on probation after serving a lengthy prison term. During a 2023 traffic stop in Hillsborough County, officers claimed they smelled cannabis when approaching the vehicle. Relying solely on odor, they searched the car and later found substances that led to his arrest. Williams moved to suppress the evidence, arguing that the plain smell cannabis search doctrine should no longer apply given Florida’s medical marijuana laws and hemp legalization.
The trial court denied his motion, citing older precedent that allowed searches based on marijuana odor alone. On appeal, however, the Second DCA took the opportunity to revisit the doctrine.
The Court’s Key Holding
The Second DCA acknowledged decades of precedent that treated the smell of marijuana as inherently incriminating. But the court emphasized that legislative changes have dramatically altered cannabis regulation:
- Medical marijuana is lawful when dispensed from treatment centers for qualified patients.
- Hemp is lawful under both federal and Florida law if it contains less than 0.3% THC.
- Smokable hemp is legal in Florida, even in vehicles.
Because these lawful forms are indistinguishable from illegal cannabis by odor alone, the court ruled that smell is no longer an “immediately apparent” indicator of criminal activity. Thus, the plain smell doctrine cannot support probable cause without additional factsWilliam v. State of Florida No.….
Why the Evidence Was Still Admitted
Although the Second DCA receded from its earlier ruling in Owens v. State (2021), it ultimately affirmed Williams’ probation revocation. Why? Because at the time of the search, Owens was binding precedent. Under the U.S. Supreme Court’s decision in Davis v. United States, evidence is not excluded when officers reasonably rely on then-controlling appellate precedent.
The court did, however, remand for correction of a clerical error in the revocation order.
Certified Question to the Florida Supreme Court
Recognizing the sweeping impact of its holding, the Second DCA certified a question of great public importance:
Does the plain smell doctrine continue to apply to establish probable cause based only on the odor of cannabis?
This certified question sets the stage for the Florida Supreme Court to give definitive guidance on the issue.
Practical Impact for Floridians
For years, drivers across Florida have been searched, arrested, and prosecuted after an officer claimed to smell marijuana. This decision shifts the balance:
- Odor alone is no longer enough. Officers must point to other facts beyond smell to justify a search.
- Probationers and parolees retain constitutional protections unless their supervision terms explicitly waive them.
- Future litigation will likely focus on whether other circumstances—such as driver behavior or visible contraband—combine with odor to create probable cause.
Why Legal Representation Matters
This case is a reminder that constitutional protections are constantly evolving. What was considered lawful for police yesterday may be unlawful today. The Tampa Drug Crime Attorneys who understand these changes are the ones best positioned to protect their clients.
At The Brancato Law Firm, P.A., we monitor every development in Florida criminal law to ensure our clients receive the strongest defense. Attorney Rocky Brancato brings over 25 years of courtroom experience to defending serious charges, including drug crimes, sex offenses, and violent felonies.
Conclusion
Williams v. State represents a significant recalibration of Florida search and seizure law. While the odor of cannabis remains relevant, it can no longer be the sole basis for probable cause. The Florida Supreme Court will soon decide whether to adopt this reasoning statewide, but for now, the Second DCA has set a new standard in Tampa Bay and beyond.
If you or a loved one are facing criminal charges after a search based on odor, contact The Brancato Law Firm, P.A. today at (813) 727-7159 for a confidential consultation.
Frequently Asked Questions
Does the odor of cannabis still allow police to search my car in Florida?
No. The Second District Court of Appeal ruled in Williams v. State that the odor of cannabis by itself does not provide probable cause for a search. Officers must now rely on the totality of the circumstances, not smell alone.
What is the plain smell doctrine?
The plain smell doctrine allowed officers to search based only on detecting the odor of cannabis. Because Florida has legalized medical marijuana and hemp, the court found that odor alone no longer proves criminal activity.
Does this mean cannabis possession is fully legal in Florida?
Not at all. Cannabis possession remains illegal unless it is medical marijuana from a licensed treatment center or hemp with less than 0.3% THC. The ruling only limits how police can justify a search.
Can probationers still be searched if officers smell cannabis?
Probationers have special conditions, but in Williams v. State the court noted that unless probation terms specifically allow warrantless searches by law enforcement, odor alone is not enough.
How does this decision affect DUI or impaired driving cases?
The odor of cannabis may still be considered along with other factors, such as driving behavior or visible evidence. However, odor alone is no longer dispositive for probable cause.
What should I do if I was searched based on cannabis odor?
You should contact an experienced criminal defense attorney immediately. At The Brancato Law Firm, P.A., we challenge unlawful searches and use the latest case law to protect our clients’ rights.