Old Habits Die Hard

In State v. Fortin, 2024 Fla. App. LEXIS 2133 (March 20, 2024), the Fourth District made clear its view that, despite recent changes in Florida law regarding medical marijuana and hemp, the plain view and plain smell doctrines have continued validity.

Under the facts of the case, the appellate court revered holding “as a matter of law that the officer’s visual and olfactory perceptions of marijuana provided probable cause for the vehicle search” which resulted in the seizure of a firearm found under the driver’s seat and the criminal charges – possession of a firearm by a convicted felon and carrying a concealed firearm without permit.

Defense counsel moved to suppress the firearm and statements obtained after a traffic stop and search of Mr. Fontin’s vehicle that resulted in his arrest. Mr. Fontin was stopped because his vehicle was obstructing traffic.

Upon approaching the stopped vehicle, the officer immediately smelled the odor of fresh marijuana, and he observed a clear plastic bag containing marijuana in plain view. The officer also saw scattered marijuana “shake.”

Despite a female passenger’s denial that there was anything illegal in the vehicle, the officer felt he had probable cause to conduct a search of the vehicle for illegal drugs. The occupants were asked to step out of the vehicle, while another officer conducted the search and found the concealed firearm.

The arresting officer testified that Mr. Fortin first revealed that he possessed a medical marijuana card after the firearm was found. On cross-examination, the officer testified he did not ask the defendant whether he had a medical marijuana card before the vehicle search, as he knew the medical marijuana law requires the patient to keep medical marijuana in the original dispensary container. The officer did not testify that he saw Mr. Fortin under the influence of alcohol or drugs at the time of making the traffic stop. The only grounds in support of probable cause to search were the odor of fresh marijuana and the visual observations of the marijuana in plain view.

In the motion to suppress and during the hearing on the motion, defense counsel argued that the officer did not have probable cause to search based on the smell of fresh (as opposed to burnt) marijuana or his visual observations because of recent changes in Florida law pertaining to medical marijuana and hemp. Defense counsel argued that the police officers should have first inquired whether Mr. Fortin had a medical marijuana patient card before conducting the search.

In response to the argument that the officer had probable cause because the marijuana was not in its original dispensary container, defense counsel argued that the possession of medical marijuana in a plastic bag was not illegal because the medical marijuana statute did not make a patient’s failure to keep his or her medical marijuana in its original container a criminal offense. The trial court agreed with defense counsel’s arguments and granted the motion to suppress. The state appealed the trial court order.

The appellate court decided that “the smell of marijuana alone, fresh or burnt, is sufficient to provide probable cause for an officer to search a vehicle.” Fortin at *5 (citing State v. Jennings, 968 So.2d 694, 696 (Fla. 4th DCA 2007) (smell of fresh marijuana justified search). The panel recognized that, after recent changes in Florida law allowed the possession of medical marijuana and hemp, the continuing validity of the principle that the smell of marijuana alone provides probable cause to search has been questioned because the smell of medical marijuana and hemp are indistinguishable from “illegal pot.”

The panel noted there are circumstances where “an occupant of a vehicle may have a legitimate explanation for the presence of the smell of fresh (not burning or burnt) marijuana int he vehicle, such as where the individual has a lawful prescription for it, or that the substance is, in fact, hemp.”  See Fortin at *6 (lawful possession of medical marijuana or hemp supports affirmative defense to charges, but “the smell of marijuana emanating from a vehicle continues to provide probable cause for a warrantless search of the vehicle.”).

“The advent of medical marijuana and hemp laws has resulted in some defendants challenging the ‘plain smell’ doctrine.” See Fortin at *6,n.3 (citing caselaw preceding recent changes in law). The Fourth District noted the significance of the concurring opinion in Hatcher v. State, 342 So. 3d 807 (Fla. 1st DCA 2022) questioning the continued validity of the plain smell alone doctrine in the context of the changes in the law regarding medical marijuana and hemp.

In Fortin, the panel did not need to decide whether the scent of fresh marijuana alone provides probable cause to search a vehicle, because the officer also saw a clear bag containing fresh marijuana and scattered marijuana shake, all in plain view. Even if Mr. Fortin had advised the officer of his medical marijuana patient card before the vehicle search, the officer had probable cause to conduct a search. The officer was well-versed in the statutory requirements concerning medical marijuana packaging and testified that what he had “smelled and observed was not in a medical marijuana dispensing package.” Id. at *7 (citing Fla. Stat. § 381.986(8)(e) subsections for requirement that medical marijuana centers dispense in distinct packaging and Fla. Stat. § 381.986(14)(a) for requirement that medical marijuana remain in its original distinct packaging).

The trial court granted suppression of the physical evidence and statements after concluding that, because § 381.986(14)(a) lacks a statutory penalty for failing to keep medical marijuana in its original dispensary packaging, a medical marijuana patient who removes prescribed marijuana out of the original packaging and transports it in some alternative container is not engaging in criminal conduct. However, the Fourth District rejected the analysis of the trial court, focusing on the probable cause standard which is met where there is “the kind of fair probability on which reasonable and prudent people, not legal technicians, act.” Id. at *8. The Court agreed with the view that “the possibility that a driver might be a medical-marijuana user would not automatically defeat probable cause.” Id. (citation omitted).

In Fortin, the officer (1) smelled fresh marijuana; (2) observed marijuana in a clear bag rather than in its dispensary package; and (3) observed marijuana shake in the vehicle. The information supported a belief that “a fair probability existed that the offense of illegal possession of marijuana had been or was being committed, regardless of the passenger’s statement denying illegal activity.” Id. Under “the totality of circumstances” known to the police officer, the appellate court held that he had probable cause to search the vehicle as a matter of law and vacated the court order granting suppression.

Old habits die hard. One can see the Fortin opinion as the last gasp of judicial resistance against the legalization of marijuana use. One could better understand the opinion if there was some evidence of the use of marijuana causing impaired driving under the influence, but to stigmatize a statute criminalizing the transportation of medical marijuana out of its original dispensary package is wrong.

Our office agrees with the trial court order and respectfully disagrees with the recent opinion of the Fourth District upholding old doctrines struggling to survive despite new marijuana and hemp laws.