The Smell of Marijuana Is No Longer Probable Cause to Conduct a Search

By Jonathan Blecher on October 22, 2020

Virginia recently passed legislation that restricts police officers from conducting warrantless searches based on marijuana odor. Prior to this law passing, officers who smelled marijuana from a person or property could lawfully search and seize them. The evidence they obtained could then be used at court proceedings to potentially convict defendants ofmarijuana-related offenses. Luckily, that changed thanks to Senate Bill 5029 and House Bill 5058.

These bills state that “no law-enforcement officer may lawfully stop, search, or seize any person, place, or thing solely on the basis of the odor of marijuana, and no evidence discovered or obtained as a result of such unlawful search or seizure shall be admissible in any trial, hearing, or other proceeding.” As a result of this new legislation, drivers can better avoid unnecessary encounters with the police and suffering subsequent criminal charges.

Let’s compare this landmark legislation to Florida laws. Since medical cannabis is legal for qualified patients in Florida, police officers must obtain circumstantial evidence besides the mere smell of marijuana before conducting a search. In other words, the smell of weed is not a sufficient reason to search a person or property. It’s worth mentioning that although hemp is legal for all Floridians, it contains little-to-no tetrahydrocannabinol (THC), the psychoactive compound that makes you “high,” compared
to cannabis.

However, both hemp and cannabis have the same smell, making it impossible for the police to determine whether there is probable cause to search a person or property based on marijuana-like odor alone. As a result, the Florida Highway Patrol established “odor plus” standards that establish when officers can conduct a warrantless search.

Examples of these odor plus standards include:

  • Plain view of an illegal substance
  • The existence of other illegal activity/conduct
  • Behavioral and physical signs of deception
  • Sings of impairment
  • Drug paraphernalia
  • Prior criminal record

Simply put, probable cause no longer has a smell in Florida and more recently, Virginia. As a result, more people will get to avoid suffering unnecessary and unlawful searches and seizures in Florida. As a DUI defense attorney with over 30 years of experience, I have seen Florida’s DUI laws evolve to include more exceptions and leniency in certain regards. I have also seen how relentless the prosecution can be when handling DUI cases because I used to work as one.

Now that I’m on the other side of the law, I know what it takes to win. To learn more about how I can serve you, please contact Jonathan Blecher, P.A. at 305-321-3237!

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