Does the Smell of Marijuana Still Justify a Police Search?

By: John Guidry

Oh, the times, they are a-changin’.

Every time I walk into the Orange County Courthouse, I see someone asking me to sign a petition to “put medical marijuana on Florida’s Ballot.” Somehow, whenever I’m dressed in my work uniform—suit, tie, and briefcase (don’t forget the briefcase)—the petition hawks leave me alone.

Maybe they assume that “suits” turn out to be jerks, so they just don’t bother. I understand that, and frankly, I often agree. But if I had the time, I would chat up the sign holder and tell them a little secret: Medical marijuana is already legal in Florida.

It has been since Governor Rick Scott signed the “Compassionate use of low-THC cannabis” law (Florida Statute 381.986). While the laws have expanded and evolved since then, the core fact remains: possession of cannabis is not always a crime anymore.

So, here is the million-dollar question that keeps defense attorneys up at night: If marijuana can be legal, does the mere smell of it still give police the right to search your car?

Police tore your car apart because they “smelled weed”?

You have rights. Call John today at (407) 423-1117 to challenge the search.

The Legal Breakdown: The “Odor” Loophole

For years, the “odor of cannabis” has been the skeleton key for law enforcement. It works like this:

1. The Stop: Police pull you over for speeding or a broken taillight.
2. The Sniff: The officer asks to search. You say no.
3. The Excuse: The officer suddenly says, “Do you smell weed? Yeah, I smell weed too.”
4. The Search: Because the smell constitutes Probable Cause, they search your car without a warrant.

Here is the “Straight Shooter” reality: Nine times out of ten, this is a pretext. I have seen countless cases where officers searched a vehicle based on the “odor of cannabis” only to find zero marijuana. Instead, they find cocaine, heroin, or oxycodone—none of which smell like weed.

The Argument for Change: Prior to 2015, any form of cannabis was illegal. So, the smell indicated criminal activity. But now that possession can be legal under Florida Statute 381.986, the odor of this substance shouldn’t automatically equal a crime.

Since Florida is still wrestling with this, we look to other states for wisdom. In Arizona, the appellate court in State v. Sisco, 359 P.3d 1 (2015), ruled that because their medical marijuana act made possession lawful in some circumstances, “the scent of marijuana, standing alone, is insufficient evidence of criminal activity to supply probable cause for a search warrant.”

This is the exact argument we are making in Florida courtrooms today.

John’s Takeaways

We are in a new era of drug defense in Orange, Seminole, and Volusia County. Here is what you need to know about “smell searches”:

• The “Burnt” Weed Logic: There is a strong legal argument that the smell of burnt cannabis is only evidence of a completed crime (the weed is gone, consumed by fire). It is not necessarily proof that you are currently committing the crime of possession.
• The “Inaccurate Nose” Defense: If an officer searches a car based on smell but finds no weed, their nose is obviously unreliable. We argue that the court shouldn’t trust that officer’s “training and experience” to justify the violation of your rights.
• Medical Marijuana Changes the Game: Because possession can be legal with a card, the smell alone shouldn’t be enough for a search. It’s no different than an officer smelling a prescription pill bottle—that isn’t probable cause to search your medicine cabinet.
• Never Consent: Five times out of ten, the “I smell weed” line comes after a citizen refuses a consensual search. Never give them permission. Make them put that “probable cause” on the record so we can fight it later.

Let’s Challenge the Probable Cause

The government shouldn’t have the right to search your underwear drawer or break the dashboard panels of your car just because they think they smell something that might actually be legal.

If you were subjected to a search based on the odor of marijuana, and they found something else (or nothing at all), we need to talk.

Call me at (407) 423-1117. Let’s hold them accountable.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.