While it’s still somewhat of an open question in Florida, at least some trial courts have found that an odor of cannabis emanating from a vehicle still supports probable cause for a search of that vehicle. This is in spite of the fact that, in some instances, it is legal to smoke marijuana in Florida.

On the other hand, the odor of alcoholic consumption emanating from a person, all by itself, cannot support a request by a law enforcement officer to a driver to perform field sobriety exercises, much less an arrest or search and seizure of the driver and vehicle. Why are these two odors treated differently?


The Odor of Cannabis

If marijuana and/or hemp is legal, how can its odor still support the search and seizure of a vehicle? To many, this author included, it seems patently unfair to legal possessors of marijuana that their legal possession and use of something will allow their Fourth Amendment rights to be free from a warrantless search and seizure to be eviscerated. It also seems at odds with another recent case that held that mere possession of a firearm does not support a seizure by law enforcement to determine whether the possessor has a valid concealed carry permit.

However, a decision out of the Ninth Circuit of Florida (Orlando area), held that the odor of cannabis did support a search and seizure of the occupants of the vehicle as well as the vehicle itself. In State v. Ruise, 28 Fla. L. Weekly Supp. 122a (Fla. 9th Cir. Ct. 2020), Judge LeBlanc held that because one substance, that being hemp, is legal and the other, that being cannabis, is not legal, the officers possessed probable cause to search a vehicle. This is despite the court’s recognition that the odors of the two substances are indistinguishable. The court further held that until recreational marijuana is legalized, the odor of cannabis/hemp will support probable cause for any search. Again, it is unclear why the court is making a distinction between recreational and medicinal use of marijuana. Legal medicinal possessor’s rights are still evaporated.


The Odor of Alcohol

In contrast to cannabis, the odor of an alcoholic beverage emanating from a person’s breath or vehicle may not, by itself, support probable cause or reasonable suspicion of a criminal offense. Of course, when it is coupled with other indicia of impairment, like the stereotypical blood shot/glassy eyes, slurred speech, poor driving pattern, etc., it can support further investigation by law enforcement. In this author’s opinion, the odor of alcohol is treated differently from the odor of cannabis simply because alcohol is always legal to consume, provided the drinker is over 21 years of age, while cannabis is only legal for medicinal purposes.

In State v. Louime, 28 Fla. L. Weekly Supp. 163a (Broward Cty. Ct. 2020), the driver was pulled over for some reason (the opinion is unclear on the basis for the stop). There was nothing unusual about his driving pattern or about the manner in which he pulled over. The officer, upon approaching the driver, noticed an odor of an alcoholic beverage coming from the vehicle and observed a cup in the center console that possessed a dark liquid. This was the entirety of the officer’s evidence of driving under the influence. At this point, the officer requested field sobriety exercises and the driver was subsequently arrested.

The court, Judge Kim Mollica, ultimately suppressed all the evidence obtained after the request by the law enforcement officer to the driver to perform field sobriety exercises. The court stated “that Officer Campbell did not have the requisite cause necessary to request that the Defendant submit himself to such field sobriety exercises. State v. Marshall, 36 Fla. Supp 2d 34, 35 (Fla. 4th Jud Cir 1989). See also Davis v. State, 40 Fla. Supp 2d 35, 36 (Fla. 15th Jud Cir 1989), State v. Stephens, 354 So 2d 1244 (Fla. 4th DCA 1978). See also State v. Jacobs, 22 Fla. L. Weekly Supp 831a (Fla. 7th Jud Cir County Court) (where officer who stopped defendant for driving in without headlights did not observe any indicia of impairment other than a slight odor of alcohol and slightly slurred speech, officer did not have reasonable suspicion to detain defendant for a DUI investigation) and State v. Ameqrane, supra (a lawful investigative detention and order of a citizen to perform field sobriety tests or otherwise “audition” for their freedom cannot occur unless the officer has some objective manifestation that the person stopped is driving under the influence).

In other words, an officer needs more than simple evidence of alcoholic consumption prior to furthering a DUI investigation.


Hillsborough DUI and Marijuana Attorney

Adam Bantner is a board-certified criminal trial law attorney practicing in Valrico, FL and representing defendants throughout the Tampa Bay area. If you or a loved one is facing a Driving Under the Influence or Possession of Cannabis charge, call him today at 813.397.3965 to set up your free consultation!