Drug Dog Alert Alone is Not Enough for Vehicle Search

If you’ve been arrested for possession of a controlled substance in Tampa due to a canine drug dog sniff, there might be some good news based on a recent case, Ford v. State. The Fifth District Court of Appeal ruled that the undifferentiated alert of a police drug-sniffing dog is not enough to provide the sole probable cause for a warrantless car search. This is particularly relevant when the K-9, trained to alert to THC among other substances, cannot distinguish between illegal marijuana and legal medical marijuana or hemp. This ruling opens the door for Tampa attorneys to file motions to suppress evidence in such cases, though the law is complex and skilled representation is needed.

In the Ford case, the drug dog couldn’t differentiate between illegal marijuana, medical marijuana, or hemp. Additionally, the officer handling the dog couldn’t distinguish the dog’s alert to lawful cannabis, hemp, or even other drugs like cocaine, heroin, or methamphetamine. The court did not suppress the evidence because it found that the officer acted in good faith, as the search occurred before the Fifth District’s ruling in Baxter v. State. The Baxter case concluded that the smell of cannabis (to a law enforcement officer) is no longer “immediately apparent” as synonymous with criminal activity and cannot be the sole basis for reasonable suspicion. Instead, an officer’s detection of the odor is just one factor in the totality of circumstances.

The Ford and Baxter cases are binding in the Fifth District, which includes Hernando, Citrus, Sumter, Lake, Seminole, Brevard, Marion, Volusia, Flagler, Putnam, St. Johns, Clay, Duval, and Nassau Counties. However, the Baxter ruling does not apply in the Second District, which includes Hillsborough, Pasco, Pinellas, Manatee, Sarasota, and Desoto Counties. In these counties, Owens v. State is binding and holds that an officer’s smell of marijuana from a vehicle provides probable cause for a warrantless search, regardless of the legalization of hemp and medical marijuana. Proof of a prescription or that the substance is hemp may provide an affirmative defense but does not prevent a search. The court also noted that the smell of fresh marijuana in a vehicle would provide probable cause for a search.

In Tampa, if an officer smells marijuana, the search is likely to be found lawful. However, based on the new Ford case, if a drug dog alerts to a vehicle, a Tampa attorney can file a viable motion to suppress the evidence if there are no other factors establishing probable cause outside of the dog alert.

It’s crucial to have skilled legal counsel represent you on a Ford motion to suppress to increase your chances of a favorable ruling that will withstand appeal. Rocky Brancato of the Brancato Law Firm, P.A., has the experience and skill to write and argue suppression motions and represent you in your possession of controlled substance case. Call us today at 813-727-7159 to schedule a free consultation.