At The Brancato Law Firm in Tampa, we defend people facing constructive possession charges. Our founder, Rocky Brancato, has spent more than 25 years in Hillsborough County’s criminal justice system. He served as Chief Operations Officer of the Hillsborough County Public Defender’s Office, the largest criminal defense operation in Tampa Bay, so he knows how the local system handles drug cases from the defense side.

What Does the State Have to Prove in a Constructive Possession Case?

All three of the following have to be proven beyond a reasonable doubt. If even one of them is not proven, you cannot be convicted of possession.

• You knew the drugs were there. Knowing means you were aware the drugs were in the car, room or bag.
• You could control the drugs. Control means you had the power to decide what happened to the drugs, such as keeping them, moving them or getting rid of them. The State tries to prove control by showing that you control the place where the drugs were found, such as a car you drive or a bedroom that is yours. It can also try to show that you hid the drugs there.
• The substance is the drug named in the charge. If the charge says cocaine, the State has to prove the substance was cocaine.

The State does not have to prove the drugs belonged to you. Florida defines possession by knowledge and control, so drugs owned by a friend or roommate can still be charged as yours if you knew about them and could control them. That is why saying “they weren’t mine” does not end the case by itself.

Whether anyone else used the place changes how the State proves knowledge. If you were the only person using the car or room, Florida’s jury instruction allows the jury to infer that you knew the drugs were there. If other people shared it, the jury is not allowed to make that inference, and the State has to prove your knowledge with other evidence. That evidence can be circumstantial evidence, meaning facts that point to your knowledge without directly proving it.

What Is the Difference Between Actual and Constructive Possession?

In actual possession, the drugs are on your body, so where they were found shows you possessed them. Drugs close enough for you to reach easily also count as actual possession, but only if they are under your control. The State still has to prove you knew about them. In constructive possession, the drugs are somewhere else, so the State has to prove both your knowledge and your control from the circumstances.

Constructive possession is not limited to drugs. Florida uses the same idea for other things that are illegal to possess, such as a firearm when the person charged is a convicted felon, or child sexual abuse material (CSAM) found on a shared computer. In each of these cases, the State has to show that you knew the item was there and could control it, and sharing the car, home or computer with other people makes that harder to prove.

Is Being Near Drugs Enough for a Possession Charge?

No, when the drugs are in a place someone else controls, being close to them does not prove you possessed them. Florida’s jury instruction tells jurors that closeness alone does not show control in that situation. For example, if you were visiting a friend’s apartment and police found drugs in your friend’s kitchen cabinet, being in the apartment would not prove you possessed those drugs. The State would need evidence that ties you to them.

What If the Drugs Were Found in a Shared Car or Home?

A place counts as shared when more than one person uses it. That includes the rooms everyone uses in a home you rent with a roommate, such as the kitchen and living room. It also includes your own car when other people are riding in it. Sharing a place does not clear you. Florida’s jury instruction says two or more people can possess the same drugs at the same time. This is called joint possession, and each of those people is considered to be in possession.

Sharing does change the evidence the State needs. In Brown v. State, the Florida Supreme Court held in 1983 that when a place is shared, both your knowledge of the drugs and your ability to control them “must be established by independent proof.” Independent proof means evidence other than your connection to the place, such as something you said or your fingerprints.

Brown also made one exception to the independent proof rule, for drugs in plain view. Plain view means the drugs were out in the open where anyone could see them. When drugs are in plain view in a shared place, and an owner or occupant of that place is present, the court held that those facts are enough to support that person’s conviction for constructive possession. An occupant is someone who lives in the place or shares control of it, such as a roommate who rents the apartment but does not own it.

A passenger riding in someone else’s car and a guest visiting someone else’s home do not count as occupants under this rule. For them, drugs in plain view are not automatically enough for a conviction, and the State needs other evidence that ties them to the drugs. Two decisions from Florida’s Second District Court of Appeal show what happens when the State has no other evidence against a visitor or a passenger. That court hears appeals from Hillsborough, Pinellas and Pasco counties, so its decisions apply to cases there.

• In Sundin v. State, the court reversed the conviction of a man visiting a hotel room he had not rented, even though the drugs were within his reach.
• In Wynn v. State, the court reversed a passenger’s conviction for cocaine found in the driver’s-side door handle. The cocaine was not in plain view, and the State had no evidence connecting the passenger to it.

Can You Give Me an Example of Constructive Possession?

These four hypothetical situations show which facts tend to help the State and which tend to help the defense:

• Your own car, driving alone. Police find pills in the glove box of a car you own and no one else drives. Because you alone control the car, the jury may infer you knew about the pills. These facts favor the State.
• Your own car, with a friend riding along. Police find the same pills in the closed glove box while your friend sits in the passenger seat. The car is shared, so the jury cannot infer that you knew about the pills. Unless the State has other evidence tying you to them, these facts favor the defense.
• A friend’s car, with drugs in plain sight. You are a passenger, and a bag of powder is sitting on the center console. As a passenger, you are not an occupant under the plain view rule, so the bag being visible is not automatically enough for a conviction. Without other evidence tying you to the bag, these facts favor the defense.
• A shared apartment, with drugs on the coffee table. You rent an apartment with a roommate, and police find cocaine on the living room coffee table while you are home. You are an occupant, and the drugs were in plain view. These facts favor the State.

What Evidence Do Prosecutors Use to Prove Constructive Possession?

Florida courts have accepted these kinds of evidence as proof that ties a specific person to drugs found in a shared space:

• Your own statements. Telling police the drugs are yours, that you bought them, or that you use drugs can connect you to the drugs.
• Items found with the drugs that match what you told police. In Thompson v. State, a man told police he had bought methamphetamine and described how he used drugs. A straw found with the drugs fit that description, and the court held that his statements and the straw together were enough to tie him to the drugs.
• Fingerprints or DNA. Physical evidence can tie you to the drugs themselves.

Is Constructive Possession Punished Less Than Actual Possession?

For drug charges, the penalties are the same, because Florida’s drug law treats actual and constructive possession as one offense. The penalty depends on the drug and the amount. Possessing a controlled substance is generally a third-degree felony, which carries up to five years in prison. Possessing 20 grams or less of marijuana is a first-degree misdemeanor, which carries a sentence of up to one year. Larger amounts of a drug can lead to a separate charge of drug trafficking. Our Tampa drug crimes defense page explains how the penalties change for other drugs and amounts.

That is not true of every possession charge. A convicted felon can be found guilty of possessing a firearm under section 790.23 of the Florida Statutes through either actual or constructive possession. But the three-year minimum mandatory prison sentence in section 775.087(2)(a)1 applies only when the felon actually possessed the firearm. If the State can prove only constructive possession, such as a gun found in a bedroom closet, that minimum mandatory does not apply.

How Do You Fight a Constructive Possession Charge?

These are the main defenses:

• You did not know the drugs were there. If someone else left the drugs in a car or room you use and you never knew about them, the State cannot prove you knew.
• The drugs were in a place someone else controlled. Drugs in another person’s bedroom, purse or backpack are in a place that person controls, and being near them does not prove you controlled them.
• Nothing ties you to drugs in a shared space. Without evidence such as your statements or your fingerprints, sharing the car or home where the drugs were found is not enough to prove you possessed them.
• You did not know the substance was an illegal drug. This defense applies when you knew the substance was there but did not know it was an illegal drug.
• The search was illegal. If police searched the car, home or bag without a legal basis, a motion to suppress can keep the State from using the drugs as evidence against you. If the drugs are kept out, the State may not have enough evidence left to continue the case.
• The evidence is too weak to go to trial. When the State’s evidence cannot show knowledge or control, a motion to dismiss asks the court to end the case before trial.

The defense of not knowing a substance was illegal comes from section 893.101 of the Florida Statutes. For example, it would apply if you knew a pill bottle was in your car but believed it held a legal medication. The State does not have to prove you knew a substance was illegal. Instead, your lack of knowledge is an affirmative defense, meaning a defense you raise yourself. It gives the jury a reason not to convict you even if the State proves the things it has to prove.

If you raise this defense, the jury is told that the law allows jurors to presume that a person who possessed a controlled substance knew the substance was illegal. The jury does not have to accept that presumption. If it believes you did not know the substance was illegal, it can find you not guilty. The defense does not help if your position is that you never knew the drugs were there, because that is a different question the State has to prove.

When a case involves a search, it helps to know how police are trained to conduct one. Our founder, Rocky Brancato, taught criminal procedure to officers as a police academy instructor. Our team uses that knowledge to compare what the officers in your case did with what they were taught to do. When the officers did not follow their training, we use that to challenge their testimony about the search.

In Florida, prosecutors decide after an arrest whether to file formal charges. The defense can present its arguments to prosecutors before they make that decision. When drugs are found in a shared car or shared luggage, we challenge whether the State can prove constructive possession. Luggage on a trip is a common example. When several people packed, carried or had access to the same suitcase, the State has to show which of them knew about the drugs and could control them. If the evidence cannot answer that, it is an argument we can raise with prosecutors before charges are filed.

Knowledge matters even when the drugs are found on your body. In a trial we describe in our case study It’s the Client’s Call, a client was charged after hospital staff found cocaine in his pants pocket while he was being treated for a medical emergency. No witness ever saw him conscious and in control of the drugs, and the jury found him not guilty. Each case is unique. Past results do not guarantee future outcomes.

Frequently Asked Questions About Constructive Possession in Florida

Should I talk to police about drugs found near me?

Talk to a criminal defense attorney before you say anything more to police about the drugs. In a shared car or home, your own words can be the evidence that ties you to drugs the State otherwise could not connect to you. Even saying “those belong to my roommate” can help the State, because it shows you knew the drugs were there.

Can I be convicted for drugs found in my roommate’s bedroom?

If you do not use your roommate’s bedroom, it is a place your roommate controls. Living in the same apartment does not prove you possessed drugs kept there. The State would need evidence tying you to those specific drugs, such as your fingerprints or something you said about them.

Does the State need fingerprints or DNA to prove constructive possession?

No, Florida does not require fingerprints or DNA to prove constructive possession. Other evidence, such as your own statements, can connect you to the drugs instead. The State still needs some evidence beyond the fact that you were near the drugs. In one Florida appeals case, two people could reach the drugs equally, and the State offered no fingerprints, DNA or other evidence tying the accused to them. The court reversed the conviction.

Talk to Us About a Constructive Possession Charge

A possession charge for drugs that were not on you is frightening, especially before you know what evidence the State has. If you or someone close to you has been charged with possession for drugs found in a car, home or bag, we can review the evidence the State has connecting you to those drugs and explain what it means for your case. Call The Brancato Law Firm at (813) 727-7159 for a free, confidential consultation. We are available 24/7 when someone has just been arrested. Our office is at 620 E. Twiggs Street, Suite 205, in downtown Tampa.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

In a thrown-drugs case, the suppression hearing usually comes down to a few seconds of video: did the person stop before the object left his hand, or after? I’m Rocky Brancato, and before founding The Brancato Law Firm, P.A., a Tampa criminal defense firm, I taught officers the legal limits of arrest authority as a police academy instructor. I have since tried more than 150 jury trials to verdict. Our attorneys build every abandonment challenge around that sequence, matching the officer’s report against body camera footage frame by frame.

What Does “Abandonment” Mean When Police Find Drugs You Threw?

Abandonment means you gave up your privacy interest in an item by throwing it, dropping it, or leaving it behind, so police can pick it up and use it without a warrant. Florida courts apply one critical limit: the abandonment must be voluntary. An item you discard because police illegally seized you is treated as the product of that illegal seizure, and it can be suppressed.

The Florida Supreme Court drew this line in Hollinger v. State, 620 So. 2d 1242 (Fla. 1993). The court explained that a person who flees from a show of police authority has not been seized, while a person who stays in place and submits has been seized. If a person submits to an illegal stop and then drops contraband, the evidence must be suppressed. The court added that police do not have to order a person to drop anything for the abandonment to be involuntary.

This matters most in drug possession cases, which our Tampa drug crimes attorney page covers in more detail, because a tossed baggie or pill bottle is often the only evidence the State has.

What Is the Difference Between “Drop Then Stop” and “Stop Then Drop”?

“Drop then stop” means you got rid of the item before you were seized, so it is voluntarily abandoned and admissible. “Stop then drop” means you had already submitted to police authority when you got rid of it, so the abandonment is involuntary if the stop was illegal. The legality of the officer’s order does not matter in a “drop then stop” case.

The U.S. Supreme Court set the federal rule in California v. Hodari D., 499 U.S. 621 (1991). Hodari ran when he saw officers, and he tossed a rock of crack cocaine just before an officer tackled him. The State conceded the officer had no reasonable suspicion to stop him. The Court still held the cocaine admissible because a person is seized only by physical force or by submitting to a show of authority, and Hodari had done neither when he threw it.

Florida’s Fourth District applied that rule in Johnson v. State, 640 So. 2d 136 (Fla. 4th DCA 1994). An officer told Johnson to stop. Johnson kept walking briskly, stepped onto a porch, threw something down, and only then turned toward the officer and said, “What, officer?” The State conceded the officers had no lawful reason to stop him. The court called it a very close case, but it upheld the trial judge’s finding that the drop came before the stop, so the evidence came in.

When Are You “Seized” by Police in Florida?

You are seized when an officer physically restrains you or when you submit to an officer’s show of authority, such as an order to stop. Submission does not require handcuffs or even a spoken command. Courts look at what you actually did in the seconds before the item left your hand.

Hollinger shows how little it can take. Masked Orange County deputies in SWAT-style gear pulled into a parking lot during a drug sweep, announced “Orange County Sheriff’s Office,” and approached a group. Hollinger put his hand behind his back and dropped a tissue holding six rocks of cocaine. No deputy told him to freeze. The trial judge found that a reasonable person would have felt he was not to move, and the Florida Supreme Court upheld the suppression.

In Lang v. State, 671 So. 2d 292 (Fla. 5th DCA 1996), a deputy stopped Lang, who was walking at night with a flashlight in a high-crime area, without any reasonable basis. The deputy told Lang to step back to the patrol car, and Lang began to comply. When the deputy told him to take his hand out of his pocket, Lang threw a pill bottle behind him. The Fifth District held that Lang had submitted by starting to comply, so the abandonment was involuntary, and it reversed his conviction.

Compare State v. Canada, 715 So. 2d 1164 (Fla. 5th DCA 1998). Officers asked Canada what was in his hand. Instead of showing them, he turned, threw a film container about 25 feet over a chain-link fence, and tried to run. Because Canada never yielded, the Fifth District held the abandonment voluntary and reversed the trial court’s suppression order.

When our attorneys evaluate a thrown-evidence case, we ask five questions:

1. Did an officer give an order or make a show of authority, such as lights, commands, or blocking your path?
2. Did you stop, turn toward the officer, raise your hands, or begin following an instruction?
3. Did the item leave your hand before or after that act of compliance?
4. Did you try to run after throwing it?
5. What does the video show, compared with what the arrest report says?

What Did the Fifth District Decide in Jeffries v. State (2026)?

The Fifth District held that a man who stopped and turned toward an officer before throwing a pill bottle had already submitted, so the abandonment was involuntary. The case is Jeffries v. State, No. 5D2024-1721 (Fla. 5th DCA July 31, 2026), and it is the newest Florida appellate decision applying the stop-then-drop rule.

Larry Sapp, an off-duty Clay County School District police officer, was home in Putnam County, outside his jurisdiction, when his daughter told him someone had tried to break into his patrol car. Sapp saw Jeffries leaving his property, identified himself as law enforcement, and ordered him to stop. Jeffries kept walking. Sapp later found him near an apartment complex and again ordered him to stop. This time Jeffries stopped and turned toward Sapp. As Sapp moved in to arrest him, Jeffries made a throwing motion. A responding officer found a pill bottle containing narcotics where the object landed, and a search of Jeffries turned up a stun gun.

The court applied Hollinger, Hodari D., and Johnson. It found that Jeffries had already complied with the second order to stop when he threw the bottle, which made the facts line up with Lang rather than Canada. The court noted that Jeffries had walked away the first time but stopped the second time, and the second stop is what mattered. Because the abandonment was involuntary, the pill bottle could not justify the search that found the stun gun as a lawful search incident to arrest.

The court reversed the order denying suppression, vacated Jeffries’s conviction for possession of an electric weapon or device by a convicted felon under section 790.23, Florida Statutes, and remanded. At the hearing, defense counsel had limited the motion to suppress to the stun gun count, so the opinion does not decide what happens to the drug possession counts.

Jeffries also held that the arrest itself was unlawful. An officer outside his jurisdiction has only a private citizen’s arrest powers, which reach only a felony or a breach of the peace committed in the citizen’s presence, and the court found Sapp saw neither. We cover that part of the case in our posts on disorderly conduct and breach of the peace and on whether an off-duty police officer can arrest you in Florida.

The evergreen lesson from Jeffries is simple. Stopping and turning toward an officer is submission, and anything thrown after that moment is suppressible if the stop or arrest was illegal.

Why Does the Legality of the Stop Decide Everything?

The legality of the stop decides the case because a stop-then-drop argument wins only when the seizure was illegal. If the officer had reasonable suspicion to detain you, the evidence comes in even though you had submitted before you threw it. Every abandonment motion therefore has two parts: when you were seized, and whether the officer had a lawful basis to seize you at that moment.

Under the Florida Stop and Frisk Law, section 901.151, Florida Statutes, an officer may temporarily detain a person only when the circumstances reasonably indicate the person has committed, is committing, or is about to commit a crime. The statute also bars evidence from a search under that section unless the search complied with the statute. Our post on whether police can stop and frisk you in Florida walks through what counts as reasonable suspicion.

A recent First District case shows why the defense must attack the stop directly. In Smith v. State, No. 1D2025-0497 (Fla. 1st DCA Sept. 23, 2026), Smith tried to keep officers from seeing a cellophane baggie in his hand, including by stomping on it after he dropped it, and the court counted those efforts among the facts supporting probable cause to search his vehicle. Smith also challenged his initial detention, but his brief argued only probable cause and never addressed reasonable suspicion, so the court held he had not shown the detention was unlawful and affirmed. The Second District, which hears appeals from Tampa Bay, treats cannabis odor differently than the First District did in Smith, as we explain in our post on whether police can search your car for smelling weed in Florida.

Can Throwing Drugs Add a Tampering With Evidence Charge?

Yes, throwing drugs can lead to a tampering charge, but tossing them in plain view does not automatically qualify. Under section 918.13, Florida Statutes, the State must prove you knew an investigation was pending or about to begin and that you altered, destroyed, concealed, or removed an item with the purpose of impairing its availability. Tampering is a third-degree felony, punishable by up to five years in prison.

In State v. Jennings, 666 So. 2d 131 (Fla. 1995), Jennings swallowed suspected cocaine rocks the moment an officer shouted “police!” The Florida Supreme Court held that swallowing an item can be tampering, and that throwing evidence away in an officer’s presence may also be tampering depending on the circumstances.

The Second District, whose decisions bind Hillsborough, Pinellas, and Pasco courts, applied that rule in E.I. v. State, 25 So. 3d 625 (Fla. 2d DCA 2009). During a traffic stop in Plant City, a passenger tossed a package of methamphetamine out the truck window at the driver’s direction, and it landed in plain view on a gas station parking lot. The court held this was abandonment, not attempted tampering, because nothing showed he intended to alter, destroy, or conceal the package, and it ordered him discharged. The court pointed to swallowing drugs or dropping them into a drainage outlet as the kind of acts aimed at destroying evidence.

Abandonment doctrine works at two stages of the same case. At the suppression hearing, the question is whether the toss was voluntary. At trial on a tampering count, the question is whether the toss was a plain abandonment or an act meant to destroy or hide the evidence. Losing the first argument does not end the second.

Is Running From Police a Separate Crime in Florida?

Running from police can be charged as resisting an officer without violence, a first-degree misdemeanor under section 843.02, Florida Statutes, punishable by up to one year in jail. The charge requires that the officer was lawfully executing a legal duty when you ran.

In C.E.L. v. State, 24 So. 3d 1181 (Fla. 2009), a juvenile ran when he saw deputies at an apartment complex known for drug activity, then kept running after they ordered him to stop. The Florida Supreme Court held that his unprovoked flight in a high-crime area gave the deputies reasonable suspicion, so his continued flight in defiance of their order was resisting without violence. The court also held that the person must know the officer intends to detain him, and the officer must be justified in making the stop when the resistance occurs.

Running rarely helps. Anything you throw while running is admissible under Hodari D., and if the officer had a lawful basis to stop you, the flight adds a separate charge. In Tampa Bay arrest paperwork, our attorneys routinely see a resisting count stacked on top of the charge that started the encounter, and in our Hillsborough County practice it is often the most winnable charge on the arrest affidavit. Our post on resisting an officer without violence in Florida explains those defenses.

What Charges Can Follow When Police Recover Thrown Evidence?

A thrown item usually produces a possession charge, and the throw itself can add tampering or resisting counts. Drug charges are a steady share of local arrests: in 2020, law enforcement in Hillsborough County reported 3,028 drug arrests out of 32,519 total arrests, according to the Florida Department of Law Enforcement’s 2020 county arrest data, the last year FDLE published county arrest totals in that format. That is about one of every eleven arrests in the county.

How Do Our Attorneys Challenge Thrown Evidence?

Our attorneys challenge thrown evidence by rebuilding the encounter second by second and filing a motion to suppress when the timeline shows a stop-then-drop on an illegal stop. The motion asks the judge to exclude the item and anything found because of it, as happened with the stun gun in Jeffries.

1. Pin down the sequence. We compare body camera and dash camera footage, dispatch audio, and the arrest report to fix the exact moment of the order, the moment of compliance, and the moment of the throw.
2. Test the basis for the stop. We identify what the officer knew before giving the order and whether it amounted to reasonable suspicion under section 901.151.
3. Challenge the officer’s account. Legal scholars have flagged “dropsy” testimony for decades. Law professor Christopher Slobogin, in Testilying: Police Perjury and What to Do About It, 67 U. Colo. L. Rev. 1037 (1996), describes data showing that police testimony that arrestees dropped drugs as officers approached increased after Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court decision that applied the exclusionary rule to state police. Video now lets us test that kind of claim.
4. Follow the fruit. If the throw was involuntary, we move to suppress everything that flowed from it, including later searches of your person or car.
5. Defend the add-on counts. We attack tampering and resisting charges on their own elements, even if the suppression motion fails.

Our post on motions to suppress evidence in Tampa explains how these hearings work.

What Should You Do After an Arrest Involving Thrown Drugs?

Talk to a defense attorney before you talk to anyone else about the case, and do it quickly, because the evidence that proves the sequence can disappear. Private surveillance systems often record over old footage, and witnesses forget details.

• Do not explain to police, cellmates, or friends why you threw something. Those statements can be used against you.
• Write down, privately, the order of events: when the officer spoke, when you stopped, and when the item left your hand.
• Note any businesses, homes, or vehicles nearby that may have cameras, and anyone who saw the encounter.
• Do not post about the arrest on social media.
• If officers released you and said the item would be tested, charges can still be filed later. Our representation before charges are filed can begin now.

Frequently Asked Questions About Thrown Evidence in Florida

Can police use drugs I threw while running away from them?

Usually yes, because a person who is running has not been seized, so anything thrown during the chase is treated as voluntarily abandoned under Hodari D. and Canada. The Brancato Law Firm still examines whether you actually stopped, even briefly, before the throw, since that moment can change the outcome. Our stop and frisk guide explains when police can lawfully chase and detain you.

Is it tampering with evidence to throw drugs on the ground in front of an officer?

Not automatically, because Florida requires proof that you intended to destroy, conceal, or remove the item, and a toss in plain view that police easily recover can be plain abandonment under E.I. Our attorneys at The Brancato Law Firm attack the intent element directly and use the recovery location and video to show nothing was hidden. Swallowing drugs or dropping them down a drain is treated more seriously under section 918.13.

Can thrown drug charges be dropped in Florida?

Yes, thrown drug charges can be dropped, most often when a judge suppresses the item and the State has no other evidence to prove possession. The Brancato Law Firm also evaluates diversion options, and Hillsborough County offers programs such as Pretrial Intervention and Drug Court that can result in dismissal. See our page on drug possession defense in Tampa for more.

What if I threw a gun when police approached me in Florida?

The same abandonment rules apply to a gun as to drugs, so a gun thrown before you were seized is admissible, while a gun thrown after you submitted to an illegal stop can be suppressed. For clients with a prior felony, The Brancato Law Firm treats the suppression issue as the center of the defense, because possession by a convicted felon under section 790.23 is a second-degree felony. Our Tampa gun crimes lawyer page explains those charges.

What if police let me go after I threw something and said they would test it?

You can still be charged later, because the State can file charges after lab results come back. The Brancato Law Firm can contact the prosecutor before a decision is made and preserve video while it still exists. Learn more about our pre-file advocacy work.

Does it matter if the officer was off duty or outside his jurisdiction?

Yes, because an officer outside his jurisdiction generally has only a private citizen’s arrest powers, and Jeffries shows an arrest outside those limits is unlawful. Our attorneys at The Brancato Law Firm check where the officer was, whether he was on duty, and what he personally saw before the arrest. Read more in our post on whether an off-duty police officer can arrest you in Florida.

What if the police report says I dropped the drugs before I stopped?

The report is not the final word, because the judge decides the sequence at the suppression hearing from all the evidence, including video and your testimony. The Brancato Law Firm lines up the report against the footage and dispatch timeline to find gaps. Johnson shows how close these calls can be.

Thrown Evidence Cases Are Won on the Timeline

The first thing our attorneys do in a thrown-evidence case is lock down the timeline: the video, the dispatch audio, and the officer’s report, compared second by second before footage is lost or memories fade. The Brancato Law Firm, P.A. was founded by Tampa Criminal Defense Attorney Rocky Brancato, and our attorneys defend drug, gun, and resisting charges in Hillsborough, Pinellas, and Pasco Counties. Call (813) 727-7159 now, while the evidence that shows when you stopped still exists. For more about our defense strategies, visit our Drug Crimes page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. Our attorneys defend drug cases across Tampa Bay from the pre-file stage forward — engaging the State Attorney’s Office before charges are finalized — and the first documents we audit in every case are the lab report and the charging document, side by side. As two Florida appellate decisions this year show, when those documents don’t match, convictions come apart.

Does the State Have to Prove the Exact Drug It Charged?

Yes — and if it proves a different one, you are entitled to an acquittal, not a do-over. In Quinones Santiago v. State, No. 6D2024-1003 (Fla. 6th DCA July 24, 2026), the State charged a man with trafficking in fentanyl, identified in the charging document by fentanyl’s specific statutory listing. At trial, the State’s own evidence showed the substance in the pill bottle was actually para-fluorofentanyl — a fentanyl derivative with an extra fluorine atom, listed in a different schedule under a different statutory subsection. The State argued the difference was “a distinction without a difference.” The Sixth District disagreed: “the statutes tell a different story,” and under long-standing Florida law, where an offense can be committed in various ways, the evidence must establish it was committed in the manner charged. Because the State charged one substance and proved another, it failed to prove its case — the court reversed and remanded for a judgment of acquittal.

The court even added a pointed admonishment: problems like this “should be avoided by the State taking a moment to double-check its charging documents.” That double-check is exactly what our attorneys do from the defense side, because prosecutors filing hundreds of cases do not always match the lab chemistry to the statutory subsection — and the mismatch is a complete defense that must be raised the right way, at the right moment, to end the case rather than merely delay it.

Why Does the Exact Substance Matter So Much?

Because Florida’s drug statutes treat chemically similar substances as legally different crimes, with different schedules and different consequences. The controlled-substance schedules live in Fla. Stat. § 893.03, and the trafficking statute, Fla. Stat. § 893.135, then attaches weight thresholds and mandatory minimum sentences to specific listed substances — in the disjunctive, as alternative ways of committing the crime.

Two lessons follow. First, the chemistry is a moving target — clandestine labs constantly tweak molecules, and the Legislature responds with derivative and analog listings — so whether a specific molecule actually falls within the charged listing is a genuinely litigable question that requires reading lab data against statutory text. Second, the label on the charge controls the trial: the State cannot charge one listing and convict on another, which is why the defense audit starts with the information itself.

Can You Be Convicted Twice for the Same Drugs?

No — and in May 2026 a Florida appellate court threw out three duplicate convictions in a single case to prove it. In Medders v. State, No. 4D2025-0875 (Fla. 4th DCA May 27, 2026), the defendant was convicted of both simple possession and possession with intent to sell the same drugs, plus two identically worded trafficking counts. The Fourth District reversed the duplicates. Simple possession “is subsumed by” possession with intent — every element of the lesser crime sits inside the greater one, so under the double jeopardy test codified at Fla. Stat. § 775.021(4), only one conviction can stand. And the two trafficking counts collapsed into one for a subtler reason: the statute’s opioid-trafficking provision defines a single crime of “trafficking in illegal drugs” measured by the aggregate weight of “any” of the listed substances — so possessing two different listed opioids is one trafficking offense, not two.

Two practical notes from Medders. The double jeopardy question is answered from the charging document alone — not from what the evidence later showed — which means a sharp reading of the information can identify doomed counts before trial ever starts. And these errors are correctable even after conviction, because a true double jeopardy violation is fundamental. In a system where every added count raises the scoresheet, the plea leverage, and the sentence exposure, deleting duplicate counts is not housekeeping — it changes outcomes.

Does the “Wrong Drug” Defense Always Work?

No — and an honest read of 2026’s cases shows the line. Ten days before Quinones Santiago, the same appellate court ruled for the State in State v. Smith, No. 6D2024-0495 (Fla. 6th DCA July 10, 2026), a case about cyputylone — a designer stimulant in the “bath salts” family that is not listed anywhere in the schedules by name. The trial court had dismissed the charges for exactly that reason. The Sixth District reversed: Florida’s substituted-cathinone listing works by chemical structure, not by name, covering any compound containing the defined core structure “whether or not” further modified — language the court read as “regardless of whether.” Because cyputylone contains that core structure, it is a controlled substance even though no statute spells out its name.

Put Smith and Quinones Santiago side by side and the real rule emerges. The State gets the benefit of broad, structure-based schedule definitions — a novel molecule cannot dodge the statute with a cosmetic modification. But the State is held strictly to its own paperwork: whatever listing it charges is the listing it must prove. The defense in a designer-drug case is therefore rarely “this substance isn’t illegal” and usually “the State charged the wrong listing, proved the wrong substance, or can’t establish the chemistry beyond a reasonable doubt.” That is a technical fight, fought with chemists and statutes — which is precisely why who reads the lab file matters.

How Do Defense Lawyers Attack the Substance Element?

By treating the State’s chemistry as a claim to be tested, not a fact to be accepted. In Tampa Bay drug cases, our attorneys work through a fixed sequence: obtain the full lab file (not just the one-page report) — the instrument data, the analyst’s notes, the testing method; compare the identified molecule against the exact statutory listing charged in the information, the way Quinones Santiago requires; scrutinize chain of custody from roadside seizure through the FDLE or private lab; and where the stakes justify it, retest the substance with an independent laboratory through our forensic expert network. The same audit covers the counts themselves: possession counts that duplicate intent-to-sell counts, multiple trafficking counts built on one group of substances, and weights that only cross a mandatory-minimum threshold when separate items are improperly combined. Every one of those issues is strongest when raised early — some belong in pre-file discussions with the State Attorney’s Office, some in motions, and some (like the Quinones Santiago mismatch) at the judgment-of-acquittal stage in trial. For the trafficking-specific playbook, including mandatory minimums and threshold weights, see our guide to defending a fentanyl trafficking charge in Florida.

What Should You Do After a Drug Arrest in Tampa Bay?

Say nothing about what the substance “is” — you may know less than you think, and so may the field test. Roadside presumptive tests are notoriously unreliable, deputies routinely charge based on them, and the formal lab report often arrives after the State’s filing decision. That window between arrest and filing is where our attorneys do some of their most valuable work: putting testing problems, search issues from the traffic stop or cannabis-odor search, and charging-document defects in front of the prosecutor before the information is filed. In Hillsborough County that decision typically comes within weeks, through the State Attorney’s Office at the 13th Judicial Circuit. If you were just arrested, our step-by-step guide to what to do after being arrested in Tampa covers the first 72 hours.

For more about our defense strategies, visit our Hillsborough County criminal defense page.

Frequently Asked Questions

What happens if the lab report shows a different drug than I was charged with?

That mismatch is a defense — potentially a complete one. Under Quinones Santiago v. State (Fla. 6th DCA 2026), the State must prove the substance identified in the charging document; proving a chemically and legally different substance entitles the defendant to a judgment of acquittal. Our attorneys compare the lab file to the information in every drug case for exactly this reason.

Can the State just fix the charge if it named the wrong drug?

Often it can amend before trial — which is why the timing of raising the issue is strategic, and why defense counsel may litigate it at the judgment-of-acquittal stage rather than handing the State an early warning. How and when to raise a substance mismatch is a judgment call The Brancato Law Firm, P.A. makes case by case, based on the discovery timeline and the State’s proof.

Is para-fluorofentanyl the same as fentanyl under Florida law?

No. Fentanyl is a Schedule II substance with its own statutory listing; para-fluorofentanyl is a Schedule I “fentanyl derivative” under a different subsection — chemically similar, legally distinct. As the Sixth District put it, “the statutes tell a different story,” and the difference decided Quinones Santiago.

Can I be convicted of both possession and possession with intent to sell?

Not for the same drugs. Simple possession is subsumed within possession with intent to sell, so double jeopardy — codified in Fla. Stat. § 775.021(4) — allows only one conviction, as Medders v. State (Fla. 4th DCA 2026) reaffirmed. If both convictions appear on a judgment, the duplicate can be struck, even after the fact.

Can I get two trafficking charges for two different drugs?

It depends on which listings are involved. For the opioid group in § 893.135(1)(c)1. — morphine, opium, hydromorphone and related substances — Medders holds there is one crime of “trafficking in illegal drugs” measured by aggregate weight, not a separate count per substance. Different drug families under different subsections can still be charged separately. We chart every count against the statute in trafficking cases because the count structure drives the mandatory minimums.

Do drug charges in Florida carry mandatory minimum sentences?

Trafficking charges under § 893.135 do — tied to substance and weight thresholds — which is why the exact substance and the exact weight are both worth fighting over. A successful challenge to the substance identification, the aggregation of weights, or the count structure can move a case out of mandatory-minimum territory entirely. The Brancato Law Firm, P.A. builds drug defenses around those pressure points.

Quinones Santiago and Medders are 2026’s reminders that drug cases are won on precision — the right molecule, the right statute, the right number of counts. If you or someone you love is facing a drug charge anywhere in Tampa Bay, call the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — at (813) 727-7159 before the State’s filing decision is made. The lab file and the charging document are already being written; someone should be auditing them for you.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I have served as a police academy legal instructor teaching officers the constitutional limits of search, seizure, and arrest, and I served as Chief Operating Officer of the Hillsborough County Public Defender’s Office. Today our attorneys defend gun and drug charges across Tampa Bay, and this question — marijuana and guns — now sits at the center of one of the fastest-moving areas in criminal law.

What Does Federal Law Say About Marijuana Users and Guns?

Federal law makes it a crime for any person “who is an unlawful user of or addicted to any controlled substance” to possess a firearm or ammunition. That ban lives in 18 U.S.C. § 922(g)(3), and because marijuana remains a controlled substance under federal law, it has always applied to marijuana users — including Florida’s hundreds of thousands of registered medical marijuana patients. A state card has never been a defense to the federal statute, because Florida’s medical marijuana program does not change what federal law says.

The federal ban shows up in a second place that trips up ordinary gun buyers: ATF Form 4473, the questionnaire every purchaser completes at a licensed dealer. The form asks directly whether you are an unlawful user of marijuana or any other controlled substance, and it warns that marijuana remains federally unlawful regardless of state medical programs. Answering falsely is a separate federal felony. Our attorneys have seen careful, law-abiding people put themselves in federal jeopardy with one checkbox — which is why the Supreme Court’s 2026 decision matters so much, and why it must be read carefully rather than treated as a green light.

What Did the Supreme Court Decide in United States v. Hemani?

In United States v. Hemani, No. 24-1234 (U.S. June 18, 2026), the U.S. Supreme Court held that the government’s prosecution of a regular marijuana user under § 922(g)(3) violated the Second Amendment — the first time the Court has struck down the application of a federal gun ban to drug users. Ali Hemani was prosecuted for having a gun in his home while being a regular marijuana user; the government’s theory was that regular use of a controlled substance, by itself, was enough to disarm him. It did not claim he was addicted, that he was high when found with the gun, or that he posed any particular danger.

Justice Gorsuch’s majority opinion, affirming the Fifth Circuit 7-2, rejected that theory under the historical-tradition test. The government leaned on founding-era “habitual drunkard” laws, but the Court found those laws targeted people whose drinking left them “practically incapacitated and incapable of managing their affairs” — not everyone who drank regularly. The Court also stressed how the modern statute operates: it “automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user . . . all without any pre-deprivation process,” while the historical laws required some proceeding — a conviction, a guardianship, a hearing — before anyone lost liberty. And the Court pointed out that the government’s own conduct undercuts the claim that all marijuana users are categorically dangerous: federal prosecutors have been directed to curtail enforcement against marijuana users, most states have legalized some use, and the government itself recently moved certain marijuana products down the federal schedules.

For Florida gun owners who hold medical marijuana cards, the practical takeaway is this: after Hemani, a federal prosecution built on nothing more than the fact that you regularly use marijuana is unconstitutional. That is a real shield. But it is a shield with defined edges, described next.

What Did Hemani Leave Undecided?

Hemani was an as-applied ruling, not a repeal — § 922(g)(3) is still on the books, and the Court expressly reserved several theories the government may still pursue. Anyone mixing marijuana and firearms in Florida should understand exactly where the line now sits.

That last row deserves emphasis. Nothing in Hemani changed the purchase paperwork. Until ATF revises Form 4473, a medical marijuana patient who answers “no” to the unlawful-user question is still committing a federal crime, whatever the Second Amendment now says about possession prosecutions. This is exactly the kind of trap where getting legal advice before you act is worth far more than defending a charge afterward.

Does a Florida Medical Marijuana Card Take Away Your Gun Rights?

No — holding a Florida medical marijuana card does not, by itself, disqualify you from owning or possessing a firearm under Florida law. Florida’s medical marijuana statute, Fla. Stat. § 381.986, created a physician-certification system with a patient registry, and nothing in Florida’s gun statutes makes registered patients prohibited possessors.

Florida’s concealed-carry licensing statute, Fla. Stat. § 790.06, does contain drug-related disqualifiers that patients should know about. The Department of Agriculture must deny a license to an applicant who “chronically and habitually uses alcoholic beverages or other substances to the extent that his or her normal faculties are impaired,” and to anyone found guilty of a chapter 893 drug crime within the three years before applying. A conviction for a controlled-substance offense also triggers revocation of an existing license. So while the card itself is not a disqualifier, a marijuana-related conviction — even a misdemeanor — can cost you your carry license for years.

Where Is Medical Marijuana Use Still Illegal Even With a Card?

A Florida medical marijuana card authorizes “medical use” — and the statute defines that term to exclude specific places, so using marijuana in the wrong location remains a crime even for a fully registered patient. Under § 381.986, “medical use” does not include using or administering marijuana on public transportation, in any public place, in an enclosed indoor workplace, on school grounds, or — critically for Tampa Bay’s boaters and drivers — “in a school bus, a vehicle, an aircraft, or a motorboat,” with a narrow exception for low-THC cannabis not in a form for smoking. A qualified patient who uses marijuana in plain view of the public or in a vehicle or boat commits a first-degree misdemeanor.

The Sixth District Court of Appeal enforced exactly this limit in Tanaka v. State, No. 6D2024-1581 (Fla. 6th DCA June 19, 2026), a Collier County case where the court affirmed a conviction by quoting the statute’s rule that “medical use” does not cover marijuana in a vehicle, aircraft, or motorboat. The lesson for the hundreds of thousands of Floridians with cards: your protection travels with the statute’s definitions, not with the card in your wallet. Smoking in your car — parked or moving — is outside the program, and once an officer smells it, you may face both the misdemeanor and a vehicle search. Our attorneys have litigated where the odor-of-cannabis doctrine now stands in the Tampa Bay area; see our analysis of Florida’s Second DCA limiting the plain-smell doctrine.

Can 18-to-20-Year-Olds Carry a Concealed Gun in Florida Now?

As of mid-2026, Florida’s ban on concealed-carry licenses for adults under 21 has been declared facially unconstitutional by one of Florida’s appellate courts — a major shift, though not yet a statewide settled rule. In Eubanks v. State, No. 4D2025-1698 (Fla. 4th DCA June 17, 2026), a Broward County prosecution for carrying a concealed firearm, the Fourth District held that § 790.06(2)(b) — which requires concealed-carry applicants to be 21 — “is facially unconstitutional as it relates to 18- to 20-year-olds.” The court reasoned that 18-to-20-year-olds are part of “the people” the Second Amendment protects, that the State produced no historical tradition of categorically disarming young adults, and — quoting the U.S. Supreme Court’s Rahimi decision — that a group cannot be “disarmed simply because he is not ‘responsible.’” The court reversed the young man’s conviction outright.

Two cautions before anyone under 21 straps on a holster. First, Eubanks is a Fourth District decision; Tampa, Hillsborough, Pinellas, and Pasco Counties sit in the Second District, which has not yet spoken, and the State may seek further review in the Florida Supreme Court. Second, the decision addressed concealed carry — it did not touch Florida’s open-carry ban or the separate federal rules for handgun purchases by under-21 buyers. Anyone in that age group facing a carry charge should treat Eubanks as a powerful defense to raise, not a settled right to rely on. For the broader landscape — permitless carry under Fla. Stat. § 790.01, where guns are still prohibited, and how gun charges are penalized — see our guide to gun crime laws in Florida.

How Do These Decisions Change a Florida Gun Charge Defense?

They add constitutional attacks to a defense toolbox that already starts with the Fourth Amendment. When our attorneys defend a Tampa Bay gun charge involving marijuana, the analysis now runs on three tracks at once.

1. Was the stop and search lawful? Most marijuana-and-gun cases begin with a traffic stop, a pat-down, or a search justified by the smell of cannabis. If the stop was unlawfully prolonged or the frisk exceeded its limits, the gun itself can be suppressed — see our breakdown of stop and frisk law in Florida.
2. Is the charge constitutional after Hemani and Eubanks? A federal § 922(g)(3) charge premised on use alone is now unconstitutional as applied. A state concealed-carry charge against an otherwise law-abiding 18-to-20-year-old is squarely challenged by Eubanks. These arguments are raised by motion — and where a district conflict exists, preserving the issue protects your appeal.
3. Does the statute even fit the facts? Was the marijuana “medical use” within § 381.986? Was the firearm actually “possessed”? Was a license exception satisfied? The State must prove every element, and pre-file advocacy — engaging the State Attorney’s Office before charges are formalized — can resolve borderline cases before they ever reach a courtroom.

What Should You Do If You Are Arrested on a Marijuana-Related Gun Charge?

Move fast, and say nothing about your marijuana use to anyone but your lawyer. Statements about how often you use — the exact fact that decides whether the government can build a lawful case after Hemani — are routinely volunteered in the first police interview, and they are admissible. In Hillsborough County, a felony gun arrest means booking at Orient Road Jail, first appearance within 24 hours, and formal charging decisions by the State Attorney’s Office in the weeks that follow. That charging window is where an early defense presentation can change everything: our attorneys use it to put suppression problems, Hemani and Eubanks issues, and medical-marijuana documentation in front of the prosecutor before the filing decision is made. If you were just arrested, our step-by-step guide to what to do after being arrested in Tampa walks through the first 72 hours.

For more about our defense strategies, visit our Hillsborough County criminal defense page.

Frequently Asked Questions

Can I buy a gun in Florida if I have a medical marijuana card?

Florida law does not prohibit the purchase, but the federal purchase form still asks whether you are an unlawful user of marijuana, and marijuana remains federally unlawful even for state medical patients. Answering falsely on ATF Form 4473 is a federal felony that Hemani did not eliminate. Our attorneys advise cardholders on lawful paths before purchase, because this is far easier to get right in advance than to defend afterward.

Did the Supreme Court legalize gun ownership for all drug users?

No. United States v. Hemani, No. 24-1234 (U.S. June 18, 2026), held only that prosecuting a person for regular marijuana use alone violates the Second Amendment. The Court expressly left open prosecutions of people who are addicted, armed while presently intoxicated, or shown by individualized proof to be dangerous — and it did not touch the felon-in-possession ban.

Can I keep a gun in my car along with my medical marijuana?

Carrying a firearm in your vehicle can be lawful under Florida’s permitless-carry framework, but using marijuana in a vehicle is never “medical use” under Fla. Stat. § 381.986 — it is a first-degree misdemeanor even for cardholders. Combining the two also invites a search and a charging decision that treats you as an unlawful user. Keep the marijuana sealed, in its original packaging, and never use it in the car or on a boat.

Can an 18-year-old legally carry a concealed gun in Florida in 2026?

The Fourth District held in Eubanks v. State that the 21-and-over rule in § 790.06(2)(b) is facially unconstitutional, but that ruling comes from South Florida’s appellate district and the issue is not finally settled statewide. In Tampa Bay — the Second District — prosecutors may still file the charge, and the defense must raise Eubanks by motion. The Brancato Law Firm, P.A. litigates these constitutional challenges and preserves them for appeal.

Will a marijuana conviction cost me my concealed weapons license?

Yes — a finding of guilt for a chapter 893 drug crime requires revocation of a Florida concealed-carry license, and it bars a new license for three years under Fla. Stat. § 790.06. That collateral consequence is one more reason to fight a “minor” possession charge rather than plead it out quickly. We routinely defend possession cases with the license consequences as a central goal.

Does Florida report medical marijuana patients to the federal government?

Florida’s medical marijuana use registry is a state system, and Florida law treats patient records as confidential; the registry is not a public list handed to federal authorities. But dispensary purchases, statements to police, and social media can all establish “unlawful user” status in a federal case. If you hold a card and own firearms, The Brancato Law Firm, P.A. can walk you through how the two programs actually interact.

Marijuana-and-gun law is moving faster right now than at any point in decades — Hemani and Eubanks both landed within a single week of June 2026, and the next round of decisions will decide how far they reach in Tampa Bay. If you are facing a gun or marijuana charge, or you hold a medical card and want to keep your gun rights intact, call the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — at (813) 727-7159 today. Constitutional defenses are strongest when they are raised before the State’s filing decision, not after.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I taught criminal procedure at the police academy, so I know exactly how officers are trained to build a search from a smell — and our attorneys review the recording of every odor-based stop for the moment that training shows.

Can Police Search Your Car Just Because It Smells Like Marijuana?

Not in Hillsborough, Pinellas, or Pasco County — the odor of cannabis, standing alone, no longer establishes probable cause here. In Williams v. State, No. 2D2023-2200 (Fla. 2d DCA Oct. 1, 2025), the Second District Court of Appeal — the appellate court covering Tampa Bay — sitting en banc, held that “the smell of cannabis standing alone is insufficient to establish probable cause,” receding from its own prior precedent.

The reason is simple chemistry meeting new law: since Florida legalized medical marijuana and hemp, a trained officer cannot tell by smell whether the odor comes from something illegal or something perfectly lawful. The smell no longer makes contraband “immediately apparent” — so it can no longer do the work of probable cause by itself. Odor remains a relevant factor, but it must be combined with something more. Our attorneys have been filing suppression motions built on Williams since the week it came down.

What Happened in Williams — and Why the Evidence Still Came In

Williams began the way these cases usually do: a 2023 traffic stop in Hillsborough County where officers said they smelled cannabis and searched on the odor alone — no admission of use, no indication whether the smell was hemp, medical marijuana, or illegal cannabis, and no evidence of recent smoking in the vehicle. The en banc court used the case to recede from Owens v. State, its 2021 decision holding that the legalization amendments didn’t change the Fourth Amendment analysis.

But there is a catch every reader should understand: the defendant in Williams still lost. Because the officers searched at a time when the old rule (Owens) was still binding precedent, the court applied the good-faith exception — evidence is not suppressed when officers act in objectively reasonable reliance on the appellate law in force at the time of the search. The practical translation: the new rule protects people searched after October 1, 2025, far more than those searched before. And because the change is so consequential, the court certified the question to the Florida Supreme Court as one of great public importance: does the plain smell doctrine continue to apply based only on the odor of cannabis? That question is still pending, and this page will be updated when it is answered.

When Can Odor Still Justify a Search? The Cherfils Lesson

When the smell comes with other facts — and in Cherfils v. State, No. 2D2023-1932 (Fla. 2d DCA Dec. 31, 2025), the same court showed exactly how that happens. Joshua Cherfils was stopped in a high-crime area for an improperly illuminated license tag. The officer smelled burnt marijuana. Cherfils became argumentative and nervous, then produced his medical marijuana card and admitted smoking earlier in the day — but the officer testified the odor was “a lot more than just if someone smoked earlier.” The court held that, under the totality of the circumstances, the officer could reasonably conclude Cherfils had been illegally smoking marijuana in the vehicle — and upheld the search.

The Brancato Law Firm, P.A. — Tampa search and seizure defense — (813) 727-7159

Read Williams and Cherfils together and the rule for our district is clear: smell alone loses; smell plus your own words and behavior can win — for the State.

Why Showing Your Medical Marijuana Card Can Backfire

Because the card converts a legally ambiguous smell into evidence of a crime. Hemp is legal to possess and use almost anywhere; medical marijuana is legal to possess but — under section 381.986, Florida Statutes — illegal to smoke in a vehicle. When Cherfils volunteered his card and his earlier smoking, he eliminated the innocent explanation (hemp) and handed the officer reason to believe the smell came from marijuana smoked in the car.

This is the counseling moment our attorneys wish more drivers got in advance: the Second District’s new rule is powerful, but nearly every case that loses under it loses because of what the driver said in the first ninety seconds of the stop.

August 2026 Update: Other Districts Keep Upholding Odor-Based Searches

Outside the Second District, Florida’s appellate courts are continuing to uphold vehicle searches built on the smell of marijuana — most recently in Ptomy v. State, No. 1D2025-1029 (Fla. 1st DCA Aug. 19, 2026). Applying a totality-of-the-circumstances approach, the First District affirmed a search where officers smelled marijuana in the vehicle and the driver’s own answers dispelled any lawful explanation for the scent — no hemp, no medical marijuana account that held up.

Ptomy leaned on two other recent decisions that show where the rest of the state stands: Aldama v. State, 394 So. 3d 148 (Fla. 3d DCA 2024), which found probable cause where the driver denied having a medical marijuana card or medical marijuana in the car — answers that ruled out any lawful source for the smell — and Hoehaver v. State, 389 So. 3d 766 (Fla. 5th DCA 2024), which held that the odor of burnt marijuana coming from inside a vehicle supplied probable cause. Notably, the Fifth District has also held en banc — in Baxter v. State, 389 So. 3d 803 (Fla. 5th DCA 2024) — that because the plain smell of cannabis is no longer clearly indicative of criminal activity, the odor alone cannot even supply reasonable suspicion for an investigatory stop. So even outside Tampa Bay the direction of travel is the same: the smell needs company.

Here is the statewide picture as of August 2026:

The Brancato Law Firm, P.A. — (813) 727-7159

The practical lesson hasn’t changed — it has sharpened. In every district, what you say during the stop is what converts a smell into a search. Until the Florida Supreme Court answers the certified question from Williams, the rule genuinely depends on where you were stopped — and our attorneys apply the right district’s law to every suppression motion we file.

What Do Officers Have to Show Now?

Facts beyond the smell — articulated specifically, not recited from training. Since Williams, an officer in our district who writes “I detected the odor of marijuana” and nothing more has written a suppression motion for the defense. What the case law now separates:

The Brancato Law Firm, P.A. — Tampa drug and search defense — (813) 727-7159

When our firm litigates these motions, the body camera is the battleground: the report’s neat “totality of circumstances” often turns out, on video, to be an odor and nothing else. That is a winnable case in the Second District today.

What Should You Do If Your Car Was Searched Based on Smell?

Get the search reviewed now, because the timing of your stop controls which rule applies. Searches conducted after October 1, 2025, in Hillsborough, Pinellas, or Pasco County are governed by Williams — odor alone is not probable cause, and a motion to suppress may take the State’s evidence off the table entirely. Earlier searches face the good-faith exception, but may have other defects: an unlawful stop, an overlong detention, or “additional factors” that exist only in the report. Bring the paperwork and any recording to counsel before your arraignment; suppression issues are won by lawyers who get to the video early.

Frequently Asked Questions: Cannabis Odor and Car Searches in Florida

Can police search my car for smelling marijuana in Florida?

Not based on the smell alone in the Tampa Bay area — Williams v. State ended that in October 2025. But odor combined with other factors, especially your own statements, can still justify a search, and other Florida districts continue to uphold odor-based searches. Our attorneys evaluate exactly which rule applied to your stop.

What is the plain smell doctrine?

It was the rule that the smell of cannabis, by itself, gave officers probable cause to search — treating the odor as automatically incriminating. The Second District receded from it in Williams because legal hemp and medical marijuana are indistinguishable from illegal cannabis by smell. Odor is now just one factor in the totality of the circumstances.

Should I show my medical marijuana card during a traffic stop?

Be very careful — in Cherfils, producing the card helped establish probable cause, because it signaled the smell came from medical marijuana, which is illegal to smoke in a vehicle. You are not required to explain a smell. In our cases, the card is best presented by counsel, in context, after the stop.

Does this ruling make marijuana legal in Florida?

No. Possession remains illegal except for medical marijuana obtained through a licensed dispensary and hemp within legal THC limits. Williams changed what justifies a warrantless search — not what is legal to possess.

Does the Williams rule apply everywhere in Florida?

No. Williams and Cherfils bind the Second District — Hillsborough, Pinellas, and Pasco among its counties — while the First, Third, and Fifth Districts have all recently upheld odor-based searches where the smell was burnt or the driver’s answers ruled out a legal explanation (Ptomy, Aldama, Hoehaver). Until the Florida Supreme Court answers the certified question, the rule depends on where you were stopped — and our attorneys brief the right district’s law in every motion.

What if my car was searched based on odor before October 2025?

The good-faith exception likely protects that search from suppression on odor grounds alone, because officers were relying on the law in force at the time — that is exactly what happened in Williams itself. But earlier searches often have other problems worth reviewing: the lawfulness of the stop, the length of the detention, and whether the claimed “additional factors” hold up on video.

Can a drug charge be dropped if the search was illegal?

Often, yes — when a suppression motion removes the drugs from evidence, the State frequently cannot proceed. The Brancato Law Firm, P.A. has litigated suppression in Tampa Bay courtrooms for decades, and post-Williams odor searches are among the most suppressible cases we see. Call (813) 727-7159 for a free case review.

For more about our defense strategies, visit our Tampa Drug Crimes Attorney page.

Related reading: Florida Medical Marijuana and Paraphernalia Transportation Laws · What to Do After Being Arrested in Tampa, Florida · How Does a Bond Hearing Work in Tampa? · The Criminal Court Process in Hillsborough County

Searched Over a Smell? The Law Just Moved in Your Favor

If your vehicle was searched based on the odor of cannabis in Hillsborough, Pinellas, or Pasco County, the rules that applied a year ago no longer do — and the recording of your stop may hold a suppression motion. Call the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — at (813) 727-7159 before your arraignment. The video that decides these motions does not preserve itself.

The Brancato Law Firm, P.A. 620 E. Twiggs Street, Suite 205, Tampa, FL 33602 (813) 727-7159 Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

At The Brancato Law Firm in Tampa, drug trafficking is one of the case types we regularly defend across Hillsborough, Pinellas, and Pasco Counties, drawing on more than 25 years of criminal defense experience. These cases turn on details most people never think to question: how a scale was calibrated, whether an officer had a lawful reason to prolong a traffic stop, whether moisture or packaging inflated a weight reading near a tier line. This guide explains what you are facing, where the leverage in these cases actually sits, and why the charge is not the foregone conclusion it can feel like the day after an arrest.

Why fentanyl trafficking is not the same as drug possession

Most people assume “trafficking” means selling drugs. In Florida, it does not. Fentanyl trafficking is a weight-based charge. Under Florida Statute § 893.135(1)(c)4, you can be charged with “trafficking in dangerous fentanyl or fentanyl analogues” simply for being in actual or constructive possession of 4 grams or more. The State never has to prove you intended to sell anything. Possession of the threshold weight alone is enough.

This catches a lot of people off guard. Someone holding what they believed was a small personal amount, or a handful of counterfeit pills, can face the same charge as a dealer.

The reason the math works against defendants is the mixture rule. Florida weighs the entire mixture, not the pure fentanyl inside it. Counterfeit “oxycodone” or “Xanax” pills, cutting agents, and fillers all count toward the 4-gram line. Because fentanyl is so potent, the National Institute on Drug Abuse describes it as 50 to 100 times stronger than morphine, the actual fentanyl in a seizure may be a tiny fraction of the total weight. A few counterfeit pills can weigh more than 4 grams even when the drug content is minimal. For a broader picture of how Florida’s trafficking thresholds work across substances, see our overview of drug trafficking in Florida.

Florida’s real fentanyl trafficking mandatory minimums

Here is where bad information online does real damage. Many websites, including some law firm blogs, list the fentanyl mandatory minimums as 3, 15, and 25 years. Those numbers are wrong for fentanyl. They belong to the separate “trafficking in illegal drugs” tier that covers heroin, morphine, and opium. Florida punishes fentanyl more harshly than heroin, and the fentanyl-specific numbers are higher.

These are the actual mandatory minimum sentences for fentanyl trafficking under the current statute:

To see how far apart the two tiers really are, compare fentanyl to the heroin and opium tier at the same weights:

At the lowest tier, the same weight of fentanyl carries more than double the mandatory prison time of heroin. If you have been working off the 3-year figure, you have been planning around a sentence that does not apply to your charge. Get the right number before you make any decision about how to proceed.

A judge cannot reduce a mandatory minimum

This is the part that makes these cases different from most drug charges. Once a fentanyl trafficking conviction attaches, the mandatory minimum is exactly that: mandatory. A judge cannot go below it, no matter how sympathetic your circumstances are, how clean your record is, or how clearly the punishment outweighs the conduct. There is no parole and no discretionary early release below the floor.

There is one statutory path beneath the mandatory minimum, and you do not control it. Only the prosecutor can file a “substantial assistance” motion, which asks the court to reduce or suspend the sentence in exchange for cooperation against other people in the drug supply chain. We will come back to why cooperation should rarely be the first move.

The practical takeaway: because no judge can save you after a conviction, the entire defense has to focus on preventing the conviction that triggers the mandatory term in the first place. That work happens early.

The defenses that actually move fentanyl cases

Not all defenses carry equal weight. Online listicles tend to dump every conceivable defense into a bullet list without explaining which ones actually decide cases. In our experience, the leverage in fentanyl trafficking cases sits in three places, roughly in this order.

Challenge the stop and the search

Most fentanyl cases begin with a traffic stop, a vehicle search, a home raid, or a phone search. If the drugs are the case, and they usually are, then getting the drugs thrown out usually ends the prosecution. A motion to suppress argues that officers violated the Fourth Amendment, for example by stopping a car without a lawful reason, searching without probable cause or a valid warrant, or holding a driver longer than the stop justified while waiting for a drug dog.

When a suppression motion succeeds, the drugs are excluded, and so is anything police found because of the illegal search. This is the single highest-leverage move in most trafficking cases, which is why securing the evidence to support it, body-camera footage, dispatch logs, and the timeline of the stop, has to happen before that material disappears.

Challenge whether the drugs were knowingly yours

This is often the strongest defense of all, and it speaks directly to the person thinking “they weren’t even mine.” When drugs are found in a place more than one person uses, a shared car, a house with several residents, a hotel room, the State cannot convict you just because you were nearby. The law calls this constructive possession, and proximity alone does not satisfy it.

To prove constructive possession, the State has to show two things: that you knew the drugs were there, and that you had the ability to control them. In a jointly occupied space, prosecutors need independent evidence tying you specifically to the drugs, such as your fingerprints or DNA on the packaging, incriminating statements, or messages on your phone. Without that, the case is vulnerable. Florida’s standard jury instructions are explicit that when possession is not exclusive, a jury may not simply assume you knew the drugs were present.

Challenge the lab analysis, weight, and chain of custody

Because the charge is built on weight, and because a fraction of a gram can move you across a tier line, the forensic evidence deserves scrutiny that public defender caseloads often do not allow. A focused defense asks whether the substance was actually fentanyl, whether the scale was properly calibrated, whether packaging or moisture inflated the weight, and whether the chain of custody from the scene to the lab to the courtroom is intact and documented.

This is where weight challenges become decisive. If independent re-testing brings the verified weight below 4 grams, the entire charge changes character:

Moving from one row to the other can be the difference between years in prison and probation. Near a tier line, challenging the science can decide the entire case. This kind of work, including independent re-testing and cross-examining the State’s analysts, is the core of forensic-driven criminal defense.

Why substantial assistance is a risky last resort

Because substantial assistance is the only door beneath the mandatory minimum, it can look tempting early. It usually should not be the first move. Cooperation is formalized in a written contract that requires the defendant to help identify, arrest, or convict other people, and only the prosecutor can ask the court to honor it. The risk is real: if the agreed cooperation falls through for any reason, the full mandatory minimum still applies.

The better goal is to defeat the conviction that triggers the mandatory term, through suppression, possession challenges, and forensic challenges, and to treat cooperation as a carefully negotiated last resort rather than a reflex. Talking your way into a cooperation deal before anyone has tested the search and the science can trade away leverage you did not know you had.

The charges that can make a fentanyl case much worse

Some fentanyl cases do not stay drug cases. A few specific escalations change the strategy entirely, and you need to know whether any of them is on the table.

• Drug-induced murder. Under Florida Statute § 782.04, distributing fentanyl that is found to be the cause of someone’s death can be charged as first-degree murder, which is a capital offense. When a death is alleged, causation becomes the central battleground, and the case requires counsel qualified to handle the most serious charges Florida brings. These cases overlap with homicide defense, not ordinary drug defense.
• Candy-like fentanyl sold to a minor. A 2023 law created a 25-years-to-life mandatory term and a $1,000,000 fine for an adult who sells or delivers 4 grams or more of fentanyl to a minor when the product resembles candy, a gummy, cereal, a vitamin, or carries cartoon or brand imagery.
• Federal adoption. Large quantities or conduct crossing state lines can be picked up by federal prosecutors, where the penalty structure and procedures differ and there is no parole.

If any of these factors is present in your case, the early decisions matter even more, because the exposure is no longer measured in years. It can be measured in decades or life.

Why your choice of attorney matters more in trafficking cases

Fentanyl trafficking cases are among the hardest drug cases to defend, precisely because the mandatory minimums hand prosecutors leverage to push for guilty pleas. The difference between a probation-eligible possession charge and a 7-year mandatory floor can come down to a fraction of a gram, the calibration of a scale, or whether a single search was lawful. Cases that turn on details that fine reward attorneys who have the time and resources to chase them.

Public defenders in Florida are often capable trial lawyers, but they carry very heavy caseloads. In a forensic-heavy trafficking case, the work that wins, securing body-cam footage and dispatch records before they are overwritten, retaining an independent lab to re-test identity and weight, building a suppression motion on a tight factual timeline, takes dedicated hours that a crushing caseload does not always allow. Evidence degrades. Footage gets purged on retention schedules. The window to lock down the facts is narrow.

This is the work our firm is built around. The Brancato Law Firm approaches every serious case as if it is going to trial, which is the posture that makes prosecutors take a defense seriously in the first place. Our founder, Rocky Brancato, served as Chief Operations Officer of the Hillsborough County Public Defender’s Office, where he oversaw a staff of over 100 attorneys and worked in a specialized major crimes unit. He understands how these cases are charged, prosecuted, and resolved because he operated at the leadership level of the system itself. He is also death-qualified, certified under Rules of the Florida Supreme Court to serve as lead counsel in capital cases, a credential that matters when a fentanyl case escalates toward a death allegation. Every defense at the firm is built under his oversight and to his standards, regardless of which of our attorneys handles the day-to-day work.

We have seen the highest-leverage moves pay off in real drug cases. In one matter, a fentanyl trafficking charge was dismissed within three weeks after we challenged the legality of the vehicle search and the client’s pretrial detention. In a cocaine trafficking case involving 200 to 400 grams, we secured a not-guilty verdict by demonstrating that a co-defendant was the actual trafficker. In another, a trafficking charge was reduced to a diversion program after a motion to suppress exposed weaknesses in the State’s case. Each case is unique. Past results do not guarantee future outcomes.

What to do in the first 48 hours

The decisions that shape a fentanyl case are made early, often before the first court date. If you or a family member has been arrested or learns of an investigation, focus on three things.

• Say nothing and ask for a lawyer. Statements made during or after an arrest are among the most damaging evidence in trafficking cases, and you cannot take them back. Politely state that you want an attorney, then stay silent.
• Do not consent to searches. You are not required to consent to a search of your car, phone, or home. Consent can hand the State the evidence a suppression motion would otherwise challenge.
• Retain experienced trial counsel before the first court date. Early involvement preserves body-cam footage, dispatch logs, and chain-of-custody records while they still exist, and in some situations it can keep charges from being filed at all.

These are not minor procedural steps. In a case where weight, the legality of a search, and the question of knowing possession decide everything, the evidence to fight on all three fronts is most available in the first days.

Frequently asked questions

Is fentanyl trafficking a felony in Florida?

Yes. Fentanyl trafficking is a first-degree felony under Florida Statute § 893.135(1)(c)4, punishable by up to 30 years in prison along with a mandatory minimum sentence and a mandatory fine that scale with weight.

Can you get probation for fentanyl trafficking in Florida?

Not on the trafficking charge itself, because it carries a mandatory minimum a judge cannot waive. Probation becomes possible only if the charge is reduced, for example if the verified weight is challenged below 4 grams and the case becomes simple possession, or if the prosecutor files a substantial assistance motion.

What is the minimum sentence for fentanyl trafficking in Florida?

The mandatory minimum is 7 years for 4 to less than 14 grams, 20 years for 14 to less than 28 grams, and 25 years for 28 grams or more. Those are the lowest sentences the law allows, and the statutory maximum is 30 years.

Does the State have to prove I intended to sell the fentanyl?

No. Intent to sell is not an element of fentanyl trafficking in Florida. Knowing possession of 4 grams or more is enough to support the charge, which is why personal-use quantities of counterfeit pills can trigger it.

Can the charge be dropped if the drugs were not mine?

It can be challenged. When drugs are found in a shared car, home, or hotel room, the State must prove you knew the drugs were there and had the ability to control them. Proximity alone is not enough, and constructive possession is one of the most effective defenses in these cases.

Talk to a Tampa drug trafficking defense attorney

A fentanyl trafficking charge moves fast, and the evidence that can defend it does not wait. The Brancato Law Firm defends drug trafficking cases across Hillsborough, Pinellas, and Pasco Counties, with senior trial counsel setting the standard on every case. If you or someone you love is facing a fentanyl charge, call us at (813) 727-7159 for a free, confidential consultation, or reach us through our contact page. The sooner we can start preserving evidence and examining the search, the weight, and the question of possession, the more options you have.

By Rocky Brancato

One of the most important principles in criminal defense is one that clients don’t always understand at first: it’s your case, not mine.

My job is to advise you. I tell you what the evidence shows, what the law says, what the likely outcomes are, and what I think you should do. I give you the benefit of 25 years of experience in Tampa’s criminal courts. You get the truth, even when it’s not what you want to hear.

But at the end of the day, the decision is yours. You decide whether to take a plea or go to trial. You decide whether to testify. The amount of risk you are willing to assume is yours. It’s your liberty on the line, your life that will be affected by the outcome. I can guide you, but I can’t make the decision for you.

And sometimes, the client makes a different choice than I would have recommended.

Sometimes they’re wrong. But sometimes—like in the case I’m about to tell you about—they’re right.

The Case

My client was charged with cocaine possession. The facts, on their face, looked bad for him.

He had experienced a medical emergency and was transported to the hospital. When hospital personnel removed his clothes for treatment, they discovered cocaine in his pants pocket—along with his wallet containing his identification and money. The hospital stored his belongings, and when the cocaine was discovered, they reported it to law enforcement.

The State was able to establish chain of custody. The cocaine was real. It was in his pants. His wallet—with his ID—was in the same pocket. Those facts weren’t in dispute.

The State offered a plea deal. Under the circumstances—the evidence, the charge, the likely outcome at trial—I thought he should take it. I told him so directly. That’s my job: to give honest advice, not to tell clients what they want to hear.

He looked at me and said no. He wanted to fight.

The State’s Case

The State’s theory was straightforward: actual possession.

Under Florida law, actual possession means the drugs were on your person—in your hand, in your pocket, under your direct physical control. The cocaine was in my client’s pants. His pants were on his body. His wallet with his ID was in the same pocket. Open and shut.

And technically, the State was right. He was in actual possession. The drugs were on him. When he was conscious, he had dominion and control over his own pants and whatever was in them.

This was the kind of case where most defense attorneys would tell their client there’s nothing to fight. The drugs were on you. They can prove it. Take the deal.

But I’ve been doing this for 25 years. And experience teaches you to look for what’s not obvious.

Seeing What Others Miss

When I reviewed the evidence, I noticed something that the State apparently hadn’t considered significant:

No one ever saw my client with conscious dominion and control over the cocaine.

Think about it. The drugs were discovered by hospital staff after he was already incapacitated from a medical emergency. By the time anyone found the cocaine, he was unconscious or being treated. No witness could testify that they saw him reach into his pocket. There was no witness who saw him touch the drugs. No one saw him conscious and in control of the cocaine at any point.

The State could prove the drugs were in his pants. They could prove chain of custody. They could prove actual possession in the technical sense—the drugs were on his person.

But could they prove he knowingly possessed them? Could they prove conscious dominion and control?

That was the gap. And gaps create reasonable doubt.

“Constructive Spiritual Possession”

I needed to frame this argument in a way the jury would understand and remember. Legal distinctions can sound abstract. Jurors need something concrete—something that sticks.

So I coined a phrase: “constructive spiritual possession.”

The argument went like this: Yes, the cocaine was in his pants. Yes, those pants were on his body. But the State is asking you to convict him of knowingly possessing those drugs, and the only evidence they have is that the drugs were found on an unconscious man being treated for a medical emergency.

No one saw him conscious with those drugs. No one saw him exercise knowing control. The State wants you to infer possession from proximity—to assume that because the drugs were in his pants, he must have known they were there and must have been in control of them.

But that’s not proof. That’s speculation. That’s constructive spiritual possession—the drugs were in the same space as his body, so he must be guilty. Is that enough to take away someone’s freedom?

Preparing the Client to Testify

There was another factor in this case: my client wanted to testify.

This is always a risk. When a defendant takes the stand, they open themselves up to cross-examination. The prosecutor’s job is to rattle them—to get them angry, confused, or defensive. To make them say something they shouldn’t. Many defendants hurt their own cases by testifying.

But again—it’s the client’s call. The decision whether to testify belongs to the defendant, not the attorney.

So I prepared him. I gave him rules for testifying: Answer the question you’re asked, nothing more. Don’t volunteer information. Stay calm. Listen to the entire question before answering.

And I warned him: The prosecutor is going to try to make you angry. That’s the strategy. They want you to lose your temper, to get defensive, to slip up. Don’t take the bait.

He listened. He heeded the advice.

On the stand, he was calm. He was composed. He answered the questions directly without being evasive. When the prosecutor pushed, he didn’t push back—he stayed measured. He told his story in a way that was credible and human.

His performance on the stand, combined with my argument about the absence of any witness to conscious possession, gave the jury what they needed.

The Verdict

The jury came back: Not guilty.

Cocaine in his pants. His wallet with his ID in the same pocket. Chain of custody established. And a not guilty verdict.

If my client had followed my recommendation, he would have taken the plea. He would have a drug conviction on his record today. Instead, he walked out of that courtroom with his record clean.

He made the call. I made the argument. He executed on the stand. And together, we won.

The Lesson

This case reminds me of two things.

First: respect client autonomy. I’ve been doing this for 25 years. I know the statistics, I’ve seen the patterns, I have a sense of how cases tend to go. But I don’t know everything. Sometimes the client sees something I don’t—maybe it’s confidence in their own ability to testify, maybe it’s a willingness to take a risk I wouldn’t take, maybe it’s just the conviction that they can live with a loss but can’t live with giving up without a fight.

Second: see what’s not obvious. The State saw a slam dunk—drugs in his pants, wallet with his ID, chain of custody. What they didn’t see, because they weren’t looking, was the absence of any witness to conscious possession. That gap was there the whole time. It just took an attorney who knew how to find it and how to make a jury see it.

What This Means for You

If you’re facing criminal charges, you need an attorney who will be honest with you—who will tell you the truth about your case, even when it’s uncomfortable. You need someone who will give you real advice based on experience, not just tell you what you want to hear.

But you also need an attorney who respects your right to make decisions. Who won’t pressure you into a plea deal because it’s easier for them. Who, when you decide to fight, will fight with everything they have.

And you need an attorney who can see what others miss. Who can find the gap in the State’s case when everyone else sees a slam dunk. Who knows how to frame an argument so a jury understands it and remembers it.

About the Author

Tampa Attorney Rocky Brancato is the founding attorney of The Brancato Law Firm, P.A., a criminal defense practice in Tampa, Florida. With more than 25 years of experience—including service as Chief Operations Officer of the Hillsborough County Public Defender’s Office—Rocky has tried hundreds of cases and developed a reputation for finding what others miss. He believes in honest advice and client autonomy: your case, your decision, his fight.

Related Articles

• Rocky Brancato’s Trial Results
• Tampa Drug Crimes Attorney
• DUI for Prescription Drugs in Florida
• What is Drug Trafficking in Florida
• Florida THC Laws: Felony vs. Misdemeanor

On September 5, 2025, the Florida Sixth District Court of Appeal issued a decision in Thomas Andrew Vana, Jr. v. State of Florida that directly addresses enhanced penalties under drug laws. This Florida drug conviction reversed park ownership ruling shows how missing evidence on park ownership can undo serious enhancements tied to drug cases.

Background of the Florida Drug Conviction Reversed Park Ownership Case

Thomas Vana was charged with eighteen offenses tied to four separate drug transactions in 2018. Among these charges were six counts of selling controlled substances within 1,000 feet of a municipal park, which carried far harsher penalties under section 893.13(1)(c), Florida Statutes (2018).

At trial, the State presented testimony from confidential informants and law enforcement officers who said Vana’s home was near Lake Kennedy Community Park. A property broker for the City of Cape Coral testified that the City owned the park, but her testimony did not establish when that ownership began. Despite this gap, the trial court denied Vana’s motion for judgment of acquittal and allowed the jury to convict on the enhanced charges.

The Appellate Court’s Analysis

On appeal, the Sixth DCA reviewed the denial of Vana’s motion for judgment of acquittal de novo. The panel emphasized that while circumstantial evidence can support a conviction, the State must prove each statutory element beyond a reasonable doubt.

Here, the enhanced charges depended on proving that the sales occurred within 1,000 feet of a state, county, or municipal park. The testimony failed to show that Lake Kennedy Community Park was municipally owned in 2018, when the offenses occurred. Testimony about ownership in later years did not satisfy the State’s burden.

The court cited similar rulings, including Cox v. State, 764 So. 2d 711 (Fla. 1st DCA 2000), and Lemaster v. State, 162 So. 3d 56 (Fla. 4th DCA 2014), which held that proof of a location’s status at the time of trial cannot substitute for proof of its status at the time of the alleged offense.

Outcome

The court affirmed Vana’s remaining convictions but reversed the six enhanced counts tied to park proximity. It remanded the case for entry of judgment on the lesser-included offenses of simple sale of a controlled substance and for resentencing.

Holding: Affirmed in part, reversed in part, and remanded with instructions.

Why This Case Matters

This ruling highlights the precision required in proving sentencing enhancements under Florida drug laws. A conviction for selling drugs near a park, school, or church can double or even triple the penalties. But the State must meet its burden with evidence tied to the actual date of the offense, not assumptions or later testimony.

Final Note

This update is provided by The Brancato Law Firm, P.A. Our firm represents individuals facing serious drug charges and other criminal cases in Tampa, Hillsborough, Pinellas, and Pasco Counties. For a free, confidential strategy session, please call (813) 727-7159.

A simple mistake regarding marijuana THC possession can have serious consequences in Florida. Many people believe marijuana is decriminalized. However, the law treats different forms of cannabis drastically differently. Understanding these distinctions is crucial. They can mean the difference between a misdemeanor and a felony, especially for concentrated THC in products like oils, waxes, and edibles.

The Brancato Law Firm, P.A. defends clients facing marijuana-related charges in Tampa, Hillsborough, Pasco, and Pinellas counties.

What Exactly is Marijuana THC Possession Under Florida Law?

Florida law creates a critical divide between cannabis flower and THC concentrates. This distinction carries significant legal weight.

• Cannabis Flower (Bud): Possessing less than 20 grams of marijuana flower is generally a first-degree misdemeanor. A conviction can result in up to one year in jail and a $1,000 fine.
• THC Concentrates (Oil, Wax, Shatter, Edibles): Florida classifies any amount of THC in a concentrated form as a Schedule I controlled substance under § 893.03(1)(c)(190). The law treats this as a third-degree felony under § 893.13(6)(a) of the Florida Statutes.

This means that possessing even a small amount of THC in a vape cartridge or a single gummy could lead to a felony charge. A conviction is punishable by up to five years in prison.

Why Does the Form of THC Matter So Much?

The key legal issue is how Florida law treats delta-9 tetrahydrocannabinol (THC) after someone extracts and concentrates it from the plant. This creates a dangerous legal situation for many people. This includes young people, college students, and first-time offenders who may not realize they are committing a felony. Even if you legally purchased THC products in another state, you can face severe penalties for possessing them in Florida.

How We Defend Against Marijuana Charges

With over 25 years of experience and more than 100 jury trials, Attorney Rocky Brancato has the knowledge and skill to effectively fight your marijuana THC possession charge. Our defense strategies include:

• Scrutinizing the Search and Seizure: Many THC-related arrests start with a questionable traffic stop or an illegal search. We will meticulously examine the details of your case to ensure police did not violate your constitutional rights.
• Challenging the Substance Identification: The prosecution must prove the substance is illegal THC. They must show it is not a legal substance like CBD or hemp-derived cannabinoids, which federal law protects. We will challenge the lab results and the chain of custody.
• Arguing for Pre-Trial Diversion or Dismissal: We can often negotiate for first-time offenders to enter a pre-trial diversion program. This can lead to the court dismissing the charges. In some cases, we can argue for an outright dismissal based on weaknesses in the prosecution’s case.
• Filing Motions to Suppress or Reduce Charges: We will file motions to suppress any evidence that police obtained illegally. We can also work to reduce a felony THC charge to a misdemeanor cannabis charge, or even get the court to throw out the case entirely.

Don’t Let a Marijuana THC Possession Charge Define Your Future

An arrest for marijuana THC possession can have a lasting impact on your life. At The Brancato Law Firm, P.A., we understand the stakes. We dedicate ourselves to navigating the complexities of the local courts. We will build a strong defense that protects not just your case, but your future.

If you have been arrested for marijuana THC possession, it is crucial to seek experienced legal representation immediately. Call us today at (813) 727-7159 or visit brancatolawfirm.com to schedule a confidential consultation.

Campbell v. State, No. 2D2023-0651 (Fla. 2d DCA Mar. 26, 2025)

On March 26, 2025, Florida’s Second District Court of Appeal issued a ruling that could reshape cannabis prosecutions throughout the state. In Campbell v. State, the court reversed a major trafficking conviction from Hillsborough County—not because the defendant proved the substance was legal hemp, but because the State failed to prove it wasn’t.

This decision highlights a critical shift in Florida drug law: after hemp legalization, prosecutors can no longer rely on what something looks like or smells like. They need laboratory proof. A Tampa Drug Crimes Attorney can help you if you get arrested for lawful hemp.

Hemp vs. Illegal Cannabis: The Legal Distinction

The 2018 Federal Farm Bill and Florida’s State Hemp Program legalized hemp—defined as cannabis containing 0.3% THC or less. Because hemp and marijuana are visually and aromatically identical, the only way to distinguish them is through laboratory testing.

What Happened in the Campbell Case

In July 2022, Tampa International Airport police flagged a flight arriving from Denver, Colorado. A K-9 unit alerted to two large duffle bags, which Pryce Campbell later claimed at baggage claim. Officers seized the bags pending a warrant.

Inside, police found fifty vacuum-sealed bundles of a green, leafy substance—over 60 pounds total. The Florida Department of Law Enforcement (FDLE) tested only one of the fifty bundles, confirming the presence of cannabis. Based on the combined weight of all bundles, the State charged Campbell with trafficking cannabis between 25 and 2,000 pounds—a first-degree felony.

How the Defendant’s Testimony Changed Everything

At trial, Campbell testified that he believed the bundles contained hemp, not marijuana. He explained that he purchased them in Oregon for $50 per bundle—significantly lower than the street value of illegal cannabis, which would have been approximately $1,000 per bundle.

This testimony raised a critical question: if the substance was illegal marijuana worth $50,000 on the street, why would Campbell pay only $2,500 for it?

Campbell’s testimony accomplished something crucial. By offering a credible alternative explanation—legal hemp purchased at hemp prices from a hemp-legal state—he forced the State to prove the substance was illegal cannabis. And here’s where the State’s case collapsed.

The Court’s Analysis

The Second DCA reversed the trafficking conviction and remanded for a reduced conviction based solely on the single tested sample. Campbell’s case was sent back for resentencing on the lesser charge.

What This Means for Cannabis Cases in Florida

Campbell establishes several critical principles that apply to cannabis prosecutions throughout Florida:

1. Visual and Smell Evidence Is No Longer Enough: After hemp legalization, prosecutors cannot prove illegal cannabis based on appearance, odor, or K-9 alerts alone.
2. Chemical Testing Is Required: The State must verify THC content exceeds 0.3% through laboratory analysis to prove the substance is illegal.
3. Trafficking Charges Require Testing the Full Quantity: When weight determines the charge level, testing a sample isn’t sufficient—the State must prove the entire quantity is illegal.
4. Defendant Testimony Can Shift the Burden: By raising a credible hemp defense—supported by facts like price and origin—defendants can force prosecutors to prove illegality through testing.

Frequently Asked Questions

Can police still arrest me based on the smell of cannabis?

Yes—police can still make arrests based on probable cause, including odor. However, Campbell makes clear that prosecutors cannot convict based on smell alone. They must prove through chemical testing that the THC content exceeds 0.3%.

Does this case apply to simple possession charges?

Yes. While Campbell involved trafficking, the underlying principle applies to any cannabis charge: the State must prove the substance is illegal cannabis (>0.3% THC), not legal hemp. However, the testing requirement becomes most critical in trafficking cases where weight determines severity.

What if my case involved cannabis shipped from a state where it’s legal?

Origin from a legal state strengthens a hemp defense. As Campbell demonstrated, purchasing cannabis products from states with legal hemp programs—at prices consistent with hemp—supports the argument that the substance was legal. However, marijuana remains illegal in Florida regardless of where it originated.

Should I testify in my cannabis case?

That depends entirely on the facts of your case. Campbell’s testimony was effective because it was credible, consistent with the evidence (low price, legal origin state), and raised a specific legal defense. However, testifying always carries risks. This decision requires careful strategic analysis with your attorney.

Facing Cannabis Charges in Tampa?

Hemp legalization changed Florida drug law fundamentally. Prosecutors who rely on outdated methods—visual identification, odor, K-9 alerts—may not be able to sustain convictions when defendants demand scientific proof.

I’m Tampa Attorney Rocky Brancato. For over 25 years, I have defended clients facing drug charges throughout Tampa Bay. If you’re facing cannabis trafficking, possession, or other drug charges, I can evaluate whether the State has the chemical evidence necessary to prove their case—and whether a hemp defense applies to your situation.

Call (813) 727-7159 for a Confidential Consultation

The Brancato Law Firm, P.A.

620 E Twiggs Street, Suite 205, Tampa, FL 33602

Serving Hillsborough, Pinellas, and Polk.

Case Citation: Pryce M. Campbell, III v. State of Florida, No. 2D2023-0651 (Fla. 2d DCA Mar. 26, 2025). See also 2018 Federal Farm Bill (Agricultural Improvement Act of 2018); Florida State Hemp Program (§581.217, Fla. Stat.).

With Florida’s harsh mandatory minimum sentences, anyone facing drug trafficking charges in Tampa, Hillsborough, Pinellas, or Polk counties must take their defense seriously and act quickly.

What Qualifies as Drug Trafficking in Florida?

Under Florida Statute, 893.135, a person commits drug trafficking if they:

• Knowingly possess, sell, purchase, manufacture, deliver, or import a controlled substance.
• Have a quantity that meets or exceeds the statutory trafficking threshold for that substance.

Even if the drugs were for personal use, possessing a large enough amount automatically escalates the charge to trafficking, triggering severe penalties.

How Prosecutors Prove Drug Trafficking

To secure a drug trafficking conviction, prosecutors must prove beyond a reasonable doubt that:

1. The defendant was aware of the presence of the controlled substance.
2. The defendant knowingly exercised control over the substance.

Possession can be:

• Sole Possession – One person has exclusive control over the drugs.
• Joint Possession – Multiple individuals share control.

Affirmative Defense: Lack of Knowledge Florida law allows defendants to argue that they were unaware of the illicit nature of the substance. However, if the defendant had actual possession (i.e., drugs were on their person), a jury may infer knowledge.

How Law Enforcement Investigates Drug Trafficking Cases

Because drug trafficking carries severe penalties, law enforcement agencies invest significant resources into building cases. Common investigative tactics include:

• Confidential Informants – Individuals facing their own charges or working undercover assist law enforcement by conducting monitored transactions.
• Controlled Communications – Investigators may record phone calls, texts, and online messages as evidence.
• Surveillance Video – Long-term monitoring of suspects to establish patterns of activity.
• Digital Forensics – Law enforcement examines phones, computers, and social media for incriminating evidence.

These tactics generate extensive surveillance footage and recorded conversations, which prosecutors rely on in court.

Defenses Against Drug Trafficking Charges

Several defense strategies can be used to challenge drug trafficking allegations, including:

• Entrapment – Law enforcement or informants induced the defendant to commit an act they otherwise wouldn’t have done.
• Fourth Amendment Violations – Evidence may be suppressed if obtained through illegal search and seizure.
• Constructive Possession – If drugs were found in a shared space (e.g., vehicle, home), prosecutors must prove the defendant had actual control over them.
• Weight Disputes – Drug weight is critical in trafficking cases. Packaging and paraphernalia weight should not be included in the total.
• Substance Analysis – Field drug test kits can yield false positives. Only lab-confirmed results are admissible in court.
• Informant Credibility Issues – Confidential informants often have questionable motives, such as avoiding their own criminal penalties or receiving financial compensation, which may impact their reliability.
• Mistaken Identity – In multi-person operations, law enforcement may mistakenly arrest individuals with no actual involvement.

Trafficking Minimum Sentencing Chart

How to Avoid Mandatory Minimum Sentences

Avoiding a mandatory minimum sentence requires a strong legal strategy. Options include:

1. Winning at Trial – Challenging the prosecution’s case and securing an acquittal.
2. Negotiating a Lesser Charge – If the prosecution faces evidentiary issues (e.g., unreliable informant), they may agree to reduce charges.
3. Cooperating with Law Enforcement – Providing substantial assistance in other investigations may lead to reduced penalties, though this carries significant risks.

Facing Drug Trafficking Charges? Act Now.

A drug trafficking conviction can permanently alter your life. If you or a loved one is facing charges, you need a criminal defense attorney who understands:

• How to challenge surveillance and informant evidence.
• How to negotiate with prosecutors for charge reductions or sentencing alternatives.
• How to fight improper law enforcement tactics, including illegal searches and entrapment.

At The Brancato Law Firm, P.A., attorney Rocky Brancato has over 25 years of criminal defense experience representing clients on drug charges. We know how to fight drug trafficking charges and protect your future.

Call us today for a confidential consultation at (813) 727-7159.

Medical Marijuana and DUI in Florida

Although medical marijuana is lawful for qualified patients, Florida law still classifies it as a controlled substance. If a driver’s normal faculties are impaired due to marijuana use, they can face DUI charges. The same applies to Delta-8 THC, a hemp-derived compound that can cause impairment.

Just as it is legal for an adult over 21 to consume alcohol, and just as it is legal for a medical marijuana cardholder to ingest cannabis, it is still illegal to drive while impaired by these substances. If alcohol, marijuana, or another drug affects a driver’s ability to safely operate a vehicle, a DUI charge may follow.

Defenses to a Marijuana DUI Charge

Although prosecutors may attempt to prove impairment, several legal defenses exist for marijuana-related DUI charges:

• Not Impaired at the Time of Driving: Marijuana can remain in the body for up to 30 days, so a positive test does not necessarily mean the driver was impaired when operating the vehicle.
• Challenging Blood or Urine Test Results: Test results can be unreliable due to improper calibration, contamination, or chain-of-custody errors.
• Challenging Field Sobriety Tests: Many individuals have medical conditions that impact their performance, or officers may conduct tests in poor environmental conditions.
• Suppressing Evidence After an Unlawful Stop: If law enforcement lacks reasonable suspicion for a traffic stop, evidence collected may be inadmissible in court.
• Expert Witness Testimony: Toxicologists and pharmacologists can testify about the limitations of marijuana testing and whether impairment was actually present.

Why Proving Marijuana DUI Is More Difficult

Unlike alcohol, where a 0.08% BAC is a clear impairment threshold, proving marijuana impairment is more complex. Marijuana stays in the system for up to 30 days, meaning a positive test does not necessarily indicate impairment at the time of driving. Prosecutors must show that the driver was actively impaired while operating the vehicle, not just that marijuana was present in their system.

Common Evidence in Marijuana DUI Cases

• Odor of Burnt Marijuana: The smell of marijuana can indicate recent use and may be used as evidence by officers.
• Erratic Driving Patterns: Weaving, slow reactions, or other unusual driving behaviors can suggest impairment.
• Field Sobriety Tests: Officers assess balance, coordination, and cognitive ability to determine impairment.
• Blood or Urine Tests: Although a positive test alone does not prove impairment, it can support a DUI case when combined with other evidence.

DUI Testing and Refusal Penalties

Florida Statute, 316.1932  allows police officers to request chemical tests to determine impairment:

Penalties for a DUI Conviction

DUI penalties apply regardless of whether the impairment comes from alcohol, marijuana, or another drug.

First DUI Conviction (Fla. Stat. § 316.193(2)(a)1.)

• Fine: $500 – $1,000
• Jail Time: Up to 6 months
• License Suspension: Minimum 180 days
• Probation: Up to 1 year
• Community Service: Minimum 50 hours
• Vehicle Impoundment: 10 days
• DUI Education Program: Mandatory

Second DUI Conviction (Fla. Stat. § 316.193(2)(a)2.)

• Fine: $1,000 – $2,000
• Jail Time: Up to 9 months
• License Suspension: Minimum 5 years (if within 5 years of the first conviction)
• Ignition Interlock Device: Required for at least 1 year
• Vehicle Impoundment: 30 days

Third DUI Conviction (Within 10 Years) (Fla. Stat. § 316.193(2)(b)1.)

• Felony charge (third-degree felony)
• Fine: $2,000 – $5,000
• Jail Time: Up to 5 years
• License Revocation: Minimum 10 years
• Ignition Interlock Device: Required for at least 2 years
• Vehicle Impoundment: 90 days

Fourth or Subsequent DUI Convictions (Fla. Stat. § 316.193(2)(b)3.)

• Felony charge (third-degree felony)
• Fine: Minimum $2,000
• Jail Time: Up to 5 years
• Permanent License Revocation
• Ignition Interlock Device: Required for at least 2 years

Common Misconceptions About Marijuana DUI

By 2025, the scent of marijuana and hemp smoke is common on Florida roads. Many drivers mistakenly believe that because medical marijuana is legal, they cannot face DUI charges. However, Florida law prohibits driving under the influence of any substance that impairs normal faculties—including legally obtained medical marijuana.

What to Do If You Face DUI Charges in Tampa Bay

If police arrest you for a DUI in Tampa Bay, your actions after the arrest can significantly impact your case. Follow these steps:

• Remain Calm: Do not resist arrest or argue with officers.
• Invoke Your Right to Remain Silent: Anything you say can be used against you.
• Request a Lawyer Immediately: Insist on speaking with an attorney before answering questions.

Contact an Experienced Tampa DUI/Medical Marijuana Lawyer Today

If you are facing DUI charges in Tampa, Hillsborough County, or the Tampa Bay area, securing experienced legal representation is critical. Brancato Law Firm, P.A. has extensive experience handling DUI cases and is familiar with local judges, prosecutors, and courts—giving our clients a strategic advantage. Check out our Tampa DUI Lawyer page and our Tampa Drug Crimes Lawyer page.

Contact Brancato Law Firm, P.A. today to discuss your case and build a strong defense.

Call (813) 727-7159 to schedule your consultation and protect your future.

Frequently Asked Questions About Medical Marijuana DUI in Florida

Can I get a DUI for using medical marijuana in Florida?

Yes. Even though medical marijuana is legal for qualified patients, Florida Statute 316.193 makes it illegal to drive while impaired by any controlled substance. This includes marijuana and Delta-8 THC. A driver can be charged if their normal faculties are impaired, even if the marijuana was legally obtained through a prescription.

Is medical marijuana still considered a controlled substance under Florida law?

Yes. Florida continues to classify marijuana as a controlled substance. While you may have a valid medical marijuana card, it does not exempt you from DUI prosecution if the state claims that your ability to drive was impaired by cannabis.

How does Florida prove a marijuana DUI?

Prosecutors must show that your ability to drive safely was impaired at the time you were operating the vehicle. Evidence may include the odor of burnt marijuana, erratic driving, field sobriety test results, or blood and urine test results. However, a positive test alone is not enough to prove impairment since THC can remain in the body for up to 30 days.

What are the penalties for a marijuana DUI in Florida?

The penalties are the same as alcohol-related DUIs:

• First offense: Fines between $500 and $1,000, up to 6 months in jail, and license suspension for at least 180 days.
• Second offense: Fines between $1,000 and $2,000, up to 9 months in jail, and a possible 5-year license suspension.
• Third offense (within 10 years): Third-degree felony with up to 5 years in prison and a 10-year revocation.
• Fourth or subsequent offense: Third-degree felony with up to 5 years in prison and permanent license revocation.

What are the common defenses to a marijuana DUI charge?

1. Lack of impairment at the time of driving

THC can linger long after the effects have worn off, so a positive test does not automatically prove impairment.

2. Faulty or unreliable testing

Blood or urine tests can be flawed due to improper calibration, contamination, or chain-of-custody errors.

3. Invalid field sobriety tests

Medical conditions, poor lighting, or uneven ground can make these tests unreliable indicators of impairment.

4. Unlawful traffic stop

If police lacked reasonable suspicion to pull you over, your attorney can move to suppress all evidence that followed.

5. Expert testimony

Toxicologists and pharmacologists can explain the limits of marijuana testing and challenge assumptions about impairment.

What happens if I refuse a breath, blood, or urine test?

Under Florida Statute 316.1932, refusing a lawful test can result in harsh penalties:

• First refusal: One-year license suspension.
• Second refusal: Eighteen-month suspension and a separate misdemeanor charge.
• Blood test refusal: May still be taken if you are unconscious or receiving medical care and suspected of impairment.

Is it harder for prosecutors to prove marijuana DUI than alcohol DUI?

Yes. Alcohol impairment is measured by a clear 0.08% BAC threshold. No such standard exists for marijuana. Because THC remains in the bloodstream long after use, prosecutors must rely on circumstantial evidence, officer observations, and expert opinions to show impairment at the time of driving.

What kind of evidence do police use in marijuana DUI cases?

Officers often rely on:

• Odor of marijuana or burnt cannabis
• Unusual driving patterns such as weaving or slow reactions
• Field sobriety test results
• Blood or urine test results
• Officer observations of red eyes or slowed speech

Each of these forms of evidence can be challenged by an experienced defense attorney.

What are the biggest misconceptions about marijuana DUI?

Many drivers believe that holding a medical marijuana card protects them from DUI charges. That is false. Florida law prohibits driving under the influence of any substance that affects normal faculties—whether legal or not. Even legally prescribed medication or hemp-derived Delta-8 can lead to a DUI if impairment is alleged.

What should I do if I am arrested for a marijuana DUI in Tampa?

1. Stay calm and cooperate. Do not argue or resist.
2. Exercise your right to remain silent. Avoid making statements about what you used or when.
3. Request an attorney immediately. Do not answer further questions until you speak with a lawyer.

As Florida continues to refine its medical marijuana laws, patients in Tampa, Hillsborough County, Pinellas County, and Pasco County must understand the nuances of paraphernalia possession and transportation. Even registered patients can face criminal charges if they violate these rules.

At The Brancato Law Firm, P.A., we clarify the legal requirements surrounding marijuana smoking devices, other paraphernalia, and the transportation of medical cannabis under Florida Statute § 381.986. Moreover, we defend patients who face charges despite their lawful medical marijuana status.

Can Medical Marijuana Patients Legally Possess Paraphernalia?

Yes—but there are important restrictions. Florida law distinguishes between smoking paraphernalia and other marijuana delivery devices. Understanding this distinction is essential to avoiding criminal charges.

Requirements for Legal Possession

To legally possess smoking paraphernalia purchased from a non-MMTC source, a Tampa resident must be listed in the Florida Medical Marijuana Use Registry and be approved for smokable marijuana. Additionally, caregivers must hold a current caregiver identification card.

Consequently, non-registered individuals found with marijuana paraphernalia may face criminal charges under Florida Statute § 893.147.

How Must Medical Marijuana Be Transported in Florida?

Medical marijuana transport is highly regulated under § 381.986(14)(a), F.S. Understanding these rules is critical because violations can result in criminal prosecution—even for registered patients.

Where Medical Marijuana Use Is Prohibited

Even registered patients cannot use medical marijuana everywhere. Florida law specifically prohibits use in the following locations:

• Public spaces (unless using low-THC cannabis not intended for smoking)
• Vehicles, boats, or aircraft
• Workplaces (unless permitted by the employer)
• Schools, including school buses (exceptions apply under § 1006.062, F.S.)

Best Practices for Transporting Paraphernalia

Although Florida law doesn’t impose specific transportation requirements for smoking paraphernalia, Tampa patients should follow these best practices to avoid legal complications:

• Transport devices clean: Devices with marijuana residue could result in complications if law enforcement mistakes them for illegal possession
• Keep receipts: For delivery devices purchased from MMTCs, retain receipts or packaging to verify legality
• Avoid visible placement: Keep paraphernalia out of plain sight in your car to minimize unnecessary interactions
• Use airtight containers: Reduces odor and potential for detention and search

Plain Odor of Marijuana and Vehicle Searches

This ruling represents a significant shift in how law enforcement can conduct vehicle searches. Previously, officers could use the smell of marijuana alone as probable cause. Now, officers must rely on the totality of the circumstances—not smell alone—to justify a search.

Learn more: The Plain Smell Doctrine in Florida

What Happens If You Violate Transportation Rules?

These penalties apply even to registered patients who fail to follow proper procedures. As a result, understanding and following transportation rules is essential to protecting your legal status.

Frequently Asked Questions

Can registered Tampa patients legally possess smoking paraphernalia not purchased from an MMTC?

Yes, they can. Under Florida Statute § 381.986(14)(b), qualified Tampa patients approved for smoking marijuana do not have to buy pipes or other smoking devices from a Medical Marijuana Treatment Center. They may legally purchase smoking paraphernalia from any lawful source, including local shops in Tampa and Hillsborough County.

What is required to legally possess smoking paraphernalia bought outside an MMTC?

Registered patient status is essential. To legally possess smoking paraphernalia purchased from a non-MMTC source, a Tampa resident must be listed in the Florida Medical Marijuana Use Registry and be approved for smokable marijuana. Additionally, caregivers must hold a current caregiver identification card.

What is the rule for transporting medical marijuana in a vehicle?

The product must stay sealed in its original packaging. Under Florida Statute § 381.986(14)(a), medical marijuana transported in a vehicle must remain sealed in its MMTC-issued packaging. Consequently, moving it into non-MMTC containers violates Florida law and could result in criminal charges.

How should Tampa patients transport marijuana paraphernalia to avoid legal issues?

Keep paraphernalia clean. It is recommended that patients transport paraphernalia without marijuana residue. Clean devices reduce the risk of law enforcement mistaking residue for illegal possession. Furthermore, keeping devices out of plain sight and using airtight containers minimizes the chance of unnecessary interactions.

What happens if a Tampa patient cannot show their medical marijuana ID card during a traffic stop?

It can lead to criminal charges. If stopped by law enforcement, a patient who cannot present a valid medical marijuana ID card may face a second-degree misdemeanor, punishable by up to 60 days in jail and a $500 fine. Therefore, always carry your ID card when transporting medical marijuana.

Can the odor of marijuana lead to a vehicle search in Tampa?

No—odor alone is not enough in Tampa. The Second District Court of Appeal ruled in Williams v. State (October 2025) 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.

How can Tampa patients reduce the risk of odor detection during transportation?

Use airtight containers. Transporting medical marijuana in airtight, sealed containers while keeping the original MMTC packaging intact can help reduce detectable odor. As a result, this lowers the chances of a stop escalating into a search.

Legal Guidance for Medical Marijuana Patients in Tampa

At The Brancato Law Firm, P.A., we help patients navigate Florida’s complex medical marijuana laws. Tampa criminal defense attorney Rocky Brancato offers guidance on paraphernalia possession, cannabis transportation, and registry compliance.

With over 25 years of experience and as former Chief Operations Officer of the Hillsborough County Public Defender’s Office, Rocky Brancato understands how law enforcement interprets these laws—and how to defend patients who face charges despite their lawful medical marijuana status.

Facing Charges? Call (813) 727-7159 for a Consultation

The Brancato Law Firm, P.A.

620 E Twiggs Street, Suite 205, Tampa, FL 33602

Serving Hillsborough, Pinellas, and Pasco Counties

Related: Tampa Drug Crimes Lawyer | Tampa DUI Lawyer | The Plain Smell Doctrine in Florida | Can I Get a DUI While Driving High on Medical Marijuana? | Florida Marijuana Possession Laws – Felony vs. Misdemeanor

At The Brancato Law Firm, P.A., Tampa Criminal Defense Attorney Rocky Brancato uses decades of major crimes experience to uncover the truth behind informant-based prosecutions. From challenging disclosure issues to exposing unreliable CI information, our firm ensures that your constitutional rights are fully protected.

What Is a Confidential Informant (CI)?

A confidential informant is an individual who provides information to law enforcement in exchange for leniency, payment, or other benefits. CIs are common in undercover operations, drug investigations, and sting operations.

While prosecutors may rely on CI testimony or tips, the law provides protections for defendants—particularly when a fair trial depends on knowing the informant’s identity.

When Does the State Have to Disclose the CI’s Identity?

When the CI Will Testify

Under Florida Rule of Criminal Procedure 3.220(b)(1)(M), if the State intends to have the informant testify, they must disclose the CI’s name and address to the defense.
In State v. Hassberger, 350 So. 2d 1 (Fla. 1977), the Florida Supreme Court confirmed that disclosure is required when a CI will appear as a witness.

When the CI Will Not Testify

If the CI is not expected to testify, their identity generally remains confidential. However, Florida courts may still require disclosure if withholding the identity would violate due process or prevent a fair defense.
Cases such as State v. Powell, 140 So. 3d 1126 (Fla. 5th DCA 2014) and State v. Burgos, 985 So. 2d 642 (Fla. 2d DCA 2008) demonstrate that courts may compel disclosure when fairness demands it.

When Can You Force Disclosure of the CI’s Identity?

Disclosure can be required even when the CI is not a witness if their participation or knowledge is essential to the defense.

1. The CI Was Directly Involved

If the informant participated in the alleged crime, disclosure is often necessary.
State v. Zamora, 534 So. 2d 864 (Fla. 3d DCA 1988) held that defendants are entitled to know a CI’s identity when they were an active participant.

2. The CI’s Role Supports an Entrapment Defense

If the CI induced or encouraged illegal activity, their testimony may be vital.
Hill v. State, 198 So. 3d 830 (Fla. 2d DCA 2016) and Bailey v. State, 994 So. 2d 1256 (Fla. 2d DCA 2008) both emphasize the importance of disclosure in entrapment cases.

3. The CI’s Testimony Is Key to Identity

Under Roviaro v. United States, 353 U.S. 53 (1957), the government’s privilege to withhold an informant’s identity must yield when disclosure is essential to a fair defense.

What if the CI Was Just a Tipster?

If a CI merely provided a tip that initiated an investigation, disclosure is generally not required.
In State v. Mashke, 577 So. 2d 610 (Fla. 2d DCA 1991) and State v. Devoid, 706 So. 2d 924 (Fla. 2d DCA 1998), courts found that tipsters who played no direct role in the offense do not have to be identified.

However, recent rulings—such as Rivera v. State, 2D2023-2053 (Fla. 2d DCA Nov. 8, 2024)—illustrate that police reliance on a CI’s tip, without sufficient corroboration, can undermine probable cause.

Rachel’s Law and the Regulation of Informants

Rachel’s Law (Fla. Stat. § 914.28) was enacted after the tragic death of Rachel Hoffman to establish statewide standards for using confidential informants.
This law requires law enforcement agencies to implement written policies for recruiting, training, and supervising informants—but it does not require disclosing their identities in court.

Although Rachel’s Law protects informants, it also provides a framework that defense attorneys can analyze for procedural violations.

How The Brancato Law Firm, P.A. Can Help

Attorney Rocky Brancato has over 25 years of experience handling complex criminal cases involving informants and undercover operations. His approach includes:

• Demanding CI Disclosure when the informant’s testimony is vital to your defense.
• Challenging Law Enforcement Procedures that violate disclosure rules or misuse informants.
• Investigating Informant Credibility to uncover bias, coercion, or unreliable information.
• Protecting Constitutional Rights through targeted motion practice and aggressive litigation strategies.

In Joshua v. State, 205 So. 3d 851 (Fla. 4th DCA 2018), the court reaffirmed that defendants must receive disclosure when a CI’s identity is necessary to ensure due process—a standard that guides every CI-based defense we handle.

Frequently Asked Questions About Confidential Informants in Florida

What is the difference between a CI and an undercover officer?

A CI is typically a civilian working with police in exchange for benefits, while an undercover officer is a trained law enforcement agent. This distinction can affect disclosure rights and credibility challenges.

Can the prosecution drop charges instead of revealing a CI’s identity?

Yes. In some cases, prosecutors choose to dismiss charges rather than disclose a highly valuable informant’s identity. This is a key strategic pressure point in CI-related litigation.

What should I do if a CI set me up?

Contact a qualified criminal defense attorney immediately. If you were induced or entrapped by a CI, your attorney may file motions to suppress or dismiss charges based on entrapment or due process violations.

Are CI agreements always legal?

Not always. Some informants operate outside approved procedures or fail to follow their agreements with law enforcement. This can make their information unreliable and potentially inadmissible in court.

Speak with a Tampa Criminal Defense Attorney Today

If a confidential informant played any role in your criminal case, it is critical to have a defense attorney who understands how to expose weak CI evidence and demand disclosure when necessary.

Call The Brancato Law Firm, P.A. today at (813) 727-7159 to schedule your confidential consultation. Attorney Rocky Brancato will help you understand your rights and develop a defense strategy that protects your freedom.