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.

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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:

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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.

The U.S. Supreme Court’s unanimous decision in Case v. Montana, 607 U.S. ___ (2026), establishes the definitive Fourth Amendment standard for warrantless home entries during mental health welfare checks. For Tampa criminal defense attorneys and defendants throughout Florida, this ruling directly impacts suppression motions in cases where police entered homes without warrants to check on individuals reported as suicidal or in crisis. The Brancato Law Firm, P.A. analyzes how this decision affects criminal cases in Hillsborough, Pinellas, and Pasco Counties.

What Happened in Case v. Montana

The case began when William Case called his ex-girlfriend and told her he was going to kill himself. During the call, she heard what sounded like a gun being cocked, then a “pop,” followed by silence. She called 911, and police officers were dispatched to Case’s home for a welfare check.

When officers arrived, they knew Case had a history of mental health issues, alcohol abuse, and had previously attempted “suicide-by-cop.” They circled the house, knocked on doors, and yelled into an open window—but got no response. Through the windows, they could see empty beer cans, an empty handgun holster, and what appeared to be a suicide note. After approximately 40 minutes of deliberation and preparation, the officers entered the home without a warrant.

Case was hiding in a bedroom closet. When an officer approached, Case threw open the closet curtain while holding what appeared to be a gun. The officer, fearing for his life, shot Case. Consequently, Case was charged with assaulting a police officer and moved to suppress all evidence obtained from the warrantless entry.

The Supreme Court’s Holding: “Objectively Reasonable Basis”

The central question before the Court was what standard applies when police enter a home without a warrant to provide emergency aid. Three possible standards were at issue:

Writing for a unanimous Court, Justice Kagan explained that the probable cause standard “is peculiarly related to criminal investigations” and would “fit awkwardly, if at all, in the non-criminal, non-investigatory setting” of emergency welfare checks. Therefore, the Court declined to “transplant” probable cause analysis to emergency aid situations.

At the same time, the Court made clear that Montana’s “reasonable suspicion” approach—requiring only “specific and articulable facts” from which an officer could “suspect” someone needs help—was also incorrect. That standard, borrowed from Terry v. Ohio street stops, is too low for the serious intrusion of entering someone’s home.

Justice Sotomayor’s Concurrence: Caution in Mental Health Crisis Responses

Justice Sotomayor joined the Court’s opinion but wrote separately to emphasize the “unique considerations” that apply when police respond to mental health crises. Her concurrence contains significant observations that defense attorneys should note:

Justice Sotomayor observed that “the presence of law enforcement at times can escalate the situation rather than ameliorate it.” Consequently, she suggested that in some circumstances, “it may be more reasonable for officers to try different means of de-escalation before entering the home”—such as speaking with the occupant from a distance, contacting family members, calling specialized crisis units, or working with mental health professionals.

Importantly, Justice Sotomayor emphasized that even when entry is justified, “the ‘manner’ of the officers’ entry and their subsequent conduct inside must also be ‘reasonable.'” This creates an additional avenue for suppression challenges based on how officers executed the entry, not just whether they were justified in entering at all.

What This Means for Tampa Criminal Cases

The Case v. Montana decision has immediate implications for criminal defense in Florida. Welfare check entries are common, and the evidence obtained often forms the basis for serious charges—from drug possession to weapons offenses to assault.

Grounds for Challenging Warrantless Welfare Check Entries

Based on Case v. Montana and its precedents, defense attorneys can challenge warrantless entries on several grounds:

• Insufficient basis for entry: Did officers have an “objectively reasonable basis” for believing someone was seriously injured or faced imminent harm? Vague reports or stale information may not suffice.
• Entry created the danger: As Case argued, if the primary risk arose from the officers’ entry itself (suicide-by-cop scenario), the entry may not have been justified to prevent harm.
• Unreasonable manner of entry: Per Justice Sotomayor, even a justified entry can become unconstitutional if officers act unreasonably once inside.
• Scope exceeded the emergency: The Court emphasized that emergency aid entries provide “no basis to search the premises beyond what is reasonably needed to deal with the emergency.”
• Alternative de-escalation ignored: Justice Sotomayor’s concurrence suggests officers should consider alternatives before entry—failure to do so may undermine reasonableness.

Why Police Training Standards Matter in These Cases

From the Courtroom: “As a former police academy instructor in criminal procedure and courtroom testimony, I taught officers the constitutional requirements they must follow—including when they can and cannot enter a home without a warrant. When I cross-examine an officer about a welfare check entry, I’m not guessing what training they received on Fourth Amendment standards. I delivered that training. I know what they were taught about the emergency aid exception, and I know when their actions deviate from proper constitutional standards.” — Rocky Brancato

The Case v. Montana decision clarifies the legal standard, but officers still must apply it correctly in the field. Furthermore, as Justice Sotomayor noted, officers responding to mental health crises should consider de-escalation alternatives. When officers rush to enter without adequate basis or without considering alternatives, the resulting evidence may be subject to suppression.

Key Precedents on Emergency Aid Home Entries

The Court’s decision in Case v. Montana builds on established Fourth Amendment precedent. Understanding these cases helps identify when suppression challenges may succeed:

• Brigham City v. Stuart, 547 U.S. 398 (2006): Established the “objectively reasonable basis for believing” standard for emergency aid entries. Officers witnessed a fight through a window with someone being struck and bleeding.
• Michigan v. Fisher, 558 U.S. 45 (2009): Applied Brigham City where officers found broken windows, blood on doors, and a man screaming and throwing things inside.
• Caniglia v. Strom, 593 U.S. 194 (2021): Rejected a broad “community caretaking” exception for home entries. Officers must have a specific emergency—general welfare concerns are insufficient.

Circuit Split Resolved by Case v. Montana

For Florida practitioners, the Eleventh Circuit had previously required probable cause for emergency aid entries. That position is now overruled. However, this doesn’t mean all welfare check entries are automatically valid—the “objectively reasonable basis” standard still demands meaningful factual support, and Justice Sotomayor’s concurrence provides additional arguments for challenging entries in mental health crisis situations.

Frequently Asked Questions About Warrantless Welfare Check Entries

Questions About the Legal Standard

Questions About Challenging Evidence

Questions About Mental Health Crisis Responses

Protect Your Rights — Challenge Unlawful Entries

If you’ve been charged with a crime based on evidence discovered during a welfare check or emergency entry, your Fourth Amendment rights may have been violated. The Case v. Montana decision clarifies the standard—but officers don’t always meet it. An experienced criminal defense attorney can analyze whether the entry was constitutionally justified and whether the evidence should be suppressed.

Contact Tampa Criminal Defense Attorney Rocky Brancato Today

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 Pasco Counties

25+ Years of Criminal Defense Experience | Former Chief Operations Officer, Hillsborough County Public Defender’s Office | Former Police Academy Instructor in Criminal Procedure

Related: Learn More About Search and Seizure Defense

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• Outstanding Warrant in Tampa? Here’s What to Do Now

Moschella v. State, No. 2D2023-0044 (Fla. 2d DCA Apr. 9, 2025)

The Florida Second District Court of Appeal recently issued a decision that reinforces a fundamental protection in criminal law: search warrants have expiration dates, and when police miss them, the evidence goes away. In Moschella v. State, the court reversed a child pornography conviction because law enforcement waited too long to execute the warrant—and no amount of “good reasons” could save the State’s case. An Experienced Tampa Sex Crimes Attorney may be able to help in your search warrant case too.

What Happened in This Case

James T. Moschella entered a no contest plea to possession of child pornography but reserved his right to appeal the denial of his motion to suppress evidence. The State agreed that if Moschella won the suppression issue on appeal, the charges would be dismissed.

The central issue involved a search warrant authorizing forensic examination of Moschella’s electronic devices—mobile phones, a tablet, and a laptop. The warrant issued on July 27, 2020. However, law enforcement didn’t execute it until sometime in September—well beyond the 10-day execution window required by Florida law.

Florida’s 10-Day Search Warrant Rule

Under Florida Statute §933.05, a search warrant must be returned within ten days of issuance. This rule has existed for over a century, reflecting the legislature’s clear intent to protect citizens’ privacy rights by limiting how long a warrant remains valid.

Florida courts have consistently held that a warrant executed beyond this 10-day period becomes “stale,” and any search conducted under it is invalid. The Second DCA established this principle in Spera v. State, 467 So. 2d 329 (Fla. 2d DCA 1985), making clear that the 10-day requirement is firm and doesn’t depend on whether the defendant suffered actual prejudice from the delay.

Key Legal Points from Moschella

Why the Trial Court Got It Wrong

The trial court denied Moschella’s suppression motion by finding he wasn’t “prejudiced” by the delay. In other words, the trial judge reasoned that since the evidence would have been the same whether police searched on day 8 or day 45, Moschella couldn’t complain.

The Second DCA rejected this reasoning. Citing Spera, the appellate court explained that courts cannot graft a “prejudice” requirement onto the statute’s straightforward language. The legislature—not judges—determined that 10 days is reasonable for warrant execution. When police exceed that deadline, the warrant becomes invalid regardless of circumstances.

Because the State had stipulated that suppression would be dispositive, the Second DCA reversed Moschella’s judgment and sentence and remanded with instructions to dismiss the charges.

What This Means for Criminal Defendants

Moschella reinforces several critical principles that apply to any Florida criminal case involving search warrants:

1. Strict Compliance Matters: Law enforcement must execute search warrants within 10 days. Missing this deadline—even by a few days—can invalidate all evidence obtained.
2. Prejudice Is Irrelevant: Defendants don’t have to prove the delay harmed them. The expired warrant alone is enough to suppress the evidence.
3. Dispositive Stipulations Are Binding: When prosecutors agree that suppression ends the case, a successful appeal results in dismissal—not a new trial.
4. Technical Defenses Win Cases: Procedural violations by law enforcement—timing, documentation, chain of custody—can be just as effective as challenging the evidence itself.

Why This Matters in Digital Evidence Cases

Cases involving electronic devices—child pornography, internet crimes, fraud—often depend entirely on digital evidence seized under warrant. These searches require forensic examination, which takes time. Law enforcement sometimes delays execution because devices need to be shipped to specialized labs, or forensic examiners have backlogs.

But Moschella makes clear that these practical difficulties don’t excuse missing the 10-day deadline. If police need more time, they must seek a new warrant—not simply ignore the expiration of the existing one.

For defendants facing serious charges based on seized computers, phones, or storage devices, this case demonstrates why meticulous review of warrant execution dates is essential. An attorney who overlooks this issue leaves a potentially case-ending defense on the table.

Frequently Asked Questions

What is Florida’s 10-day search warrant rule?

Under Florida Statute §933.05, law enforcement must execute and return a search warrant within 10 days of issuance. A warrant executed after this deadline is considered “stale” and invalid, meaning evidence obtained from the search must be suppressed.

Do I have to prove the late warrant execution hurt my case?

No. Florida courts have consistently held that no showing of prejudice is required. The mere fact that the warrant was executed beyond the 10-day deadline is enough to invalidate the search, regardless of what evidence was found.

What happens if evidence is suppressed in my case?

If suppressed evidence is central to the State’s case—as it was in Moschella—the charges may be dismissed entirely. In other cases, suppression may weaken the prosecution’s case enough to result in reduced charges or acquittal at trial.

How do I know if my warrant was executed late?

The warrant itself shows the issuance date, and the return shows when it was executed. An experienced criminal defense attorney reviews these documents carefully as part of standard case evaluation. Many defendants don’t realize this issue exists until their attorney identifies it.

Facing Digital Evidence Charges in Tampa?

Your freedom may depend on holding the government to its constitutional and statutory obligations. Cases like Moschella don’t happen by accident—they happen because defense attorneys scrutinize every detail of how evidence was obtained.

I’m Rocky Brancato. For over 25 years, I have defended clients facing serious criminal charges throughout Tampa Bay, including cases involving digital evidence and constitutional violations. If you’re facing charges based on seized electronic devices, I can review your case for warrant timing issues, chain of custody problems, and other procedural violations that could result in suppression or dismissal.

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, Pasco, and Polk Counties

Case Citation: Moschella v. State, No. 2D2023-0044 (Fla. 2d DCA Apr. 9, 2025). See also Spera v. State, 467 So. 2d 329 (Fla. 2d DCA 1985).