Changes in Florida Law Concerning

May 23, 2024

In State v. Fortin, 2024 Fla.App.LEXIS 2133 (March 20, 2024), the Fourth District reaffirmed the continued validity of the plain view and plain smell doctrines despite recent changes in Florida law concerning medical marijuana and hemp.
The appellate court reversed a trial court order granting the defendant’s motion to suppress, stating that “as a matter of law, the officer’s visual and olfactory perceptions of marijuana provided probable cause for the vehicle search.” This search led to the seizure of a firearm found under the driver’s seat and resulted in criminal charges against Fortin for possession of a firearm by a convicted felon and carrying a concealed firearm without a permit.
During a traffic stop, the officer immediately smelled fresh marijuana and observed a clear plastic bag containing marijuana in plain view inside Fortin’s vehicle. The officer also noticed scattered marijuana “shake.” Despite a female passenger’s denial of any illegal substances in the vehicle, the officer believed he had probable cause to conduct a search for illegal drugs. The occupants were asked to step out of the vehicle, and another officer found the concealed firearm during the search.
Although the arresting officer testified that Fortin revealed he possessed a medical marijuana card after the firearm was found, he did not inquire about the card before the search, as he knew the medical marijuana law requires patients to keep their marijuana in the original dispensary container. The only grounds supporting probable cause for the search were the odor of fresh marijuana and the visual observations of the marijuana in plain view.
Defense counsel argued that recent changes in Florida law regarding medical marijuana and hemp should have affected the officer’s probable cause. However, the appellate court held that “the smell of marijuana alone, whether fresh or burnt, is sufficient to provide probable cause for an officer to search a vehicle.”
Even though Fortin might have informed the officer of his medical marijuana patient card before the search, the officer still had probable cause to conduct the search. The trial court granted suppression of the physical evidence and statements, but the Fourth District rejected this decision, focusing on the probable cause standard.
The appellate court held that, under “the totality of circumstances” known to the police officer, he had probable cause to search the vehicle as a matter of law and vacated the court order granting suppression.
While some defendants have challenged the ‘plain smell’ doctrine following the legalization of medical marijuana and hemp, the Fourth District emphasized the continued validity of this doctrine, particularly in cases where the smell of fresh marijuana is evident.
Despite the changes in marijuana and hemp laws, the court found that the officer’s observations, including the smell of fresh marijuana, the clear bag containing marijuana, and the scattered marijuana shake in the vehicle, provided sufficient probable cause for the search.
In conclusion, the Fourth District’s decision in Fortin reflects a judicial resistance against the legalization of marijuana use, but it highlights the ongoing validity of the plain view and plain smell doctrines in law enforcement practices.
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