WRIGHT JOHNSON v. STATE (2025)

DelJimmyo Wright-Johnson appeals his conviction and sentence for the crime of possession of a firearm by a convicted felon and carrying a concealed firearm. The evidence of the weapon was discovered when the arresting officer stopped Wright-Johnson for a traffic violation, smelled burnt marijuana, and ultimately searched his vehicle. After his motion to suppress evidence of the weapon was denied, Defendant pled guilty but reserved his ability to appeal the denial of his motion to suppress.

Defendant does not challenge the fact that the odor of burnt marijuana was emanating from his vehicle when he was stopped. Defendant argues, however, that smell standing alone was insufficient to establish probable cause to search his vehicle because he was lawfully permitted to possess and use medical marijuana. As discussed below, a long-standing line of authority holds that the “plain smell” of marijuana alone is sufficient to provide probable cause to search a vehicle for evidence of illegal possession of marijuana under the automobile exception to the warrant requirement. But this line of authority is being called into question in light of the laws legalizing the use of medical marijuana in limited circumstances.

We affirm without reaching the merits of the continuing validity of existing precedent on the basis that the arresting officer was entitled to rely in good faith upon the law as it existed at the time of the search.

Background

On June 7, 2021, Miami-Dade Police Officer Arturo Suarez observed a white Tesla with dark tinted windows driving at a high rate of speed. He conducted a traffic stop of the vehicle at NW 95th Street and NW 26th Avenue in Miami-Dade, Florida. Defendant was the driver.

When he approached the vehicle, Officer Suarez asked Defendant to lower the vehicle's windows because he could not see into the vehicle and Defendant complied. Officer Suarez testified that on approaching the vehicle he smelled a strong odor of burnt marijuana coming from inside the vehicle. Officer Suarez then made contact with Defendant, and the following exchange occurred as reflected in the footage from the officer's body camera:

Officer Suarez: You were speeding, you know that's why I pulled you over, right?

(Defendant hands the officer his driver's license.)

Officer Suarez: Any weapons?

(Defendant shakes his head in the negative.)

Officer Suarez: Do you have any weapons? Got an ID?

Passenger: Nah, he was just taking me to go get an ID right now.

Officer Suarez: Alright, registration? This is your car or you're renting it?

(Defendant hands the officer his registration and insurance.)

Defendant: It's my car.

Officer Suarez: Your car? I was just asking because it came back to a female.

Defendant: My grandma, it's in both our names though. It should say my name.

Officer Suarez: I see it here, but in the system it only comes back to her․ [I]t smells like weed in the car man.

Defendant: I got my weed card, but we ain't got no weed in here or nothing now, but it smell like weed because I was smoking this morning. I can show you my weed card.

Officer Suarez: You know, that card doesn't apply to flowers, right?

Defendant: To huh?

Officer Suarez: To actual weed flowers.

Defendant: Yea, it do. I can buy weed in the dispensary.

Officer Suarez: Yea, but I'm saying you can't have it on you.

Defendant: I don't got none now, I'm saying, it smell like weed because I was smoking weed this morning in my car.

Officer Suarez: Oh okay. Step out.

Defendant: Step out the car?

Officer Suarez: Yea, step out.

Defendant: What?

Officer Suarez: It smells like weed in the car․ Bro, stop playing games. Step out of the car, bro.

Passenger: You want me to step out too, officer?

Officer Suarez: Yea, step out.

(Both passengers step out of the vehicle.)

Defendant: I'm legally able to smoke weed. I can't show you my weed card?

Officer Suarez: You're not able to have any smell of weed in your car.

(Officer begins patting Defendant down by the back passenger window, as Defendant lays the bag he was holding on the back passenger seat through the open window.)

Officer Suarez: The smell of weed is still considered a DUI, you understand? So, if you were to be high right now․

Defendant: I'm not high, bro.

Officer Suarez: ․ If you were to be high right now, I can take you to jail for it. Just step back over there.

Officer Suarez testified he asked Defendant to step out of the vehicle and Defendant complied, taking a satchel-like bag he had sitting on his lap at the time and placing it around his neck. Defendant then took the bag and tossed it into the back seat of the vehicle through the open back window. Officer Suarez testified he then asked Defendant to step back, away from the vehicle. Officer Suarez proceeded to open the back door of the vehicle and retrieved the bag. He testified that when he opened the door to grab the bag, Defendant began walking back towards the backseat to prevent him from lifting the bag. Officer Suarez again instructed Defendant to step back from the vehicle. Officer Suarez then took the bag, flipped open the flap on the bag, and observed a firearm along with cash. Officer Suarez subsequently detained Defendant.

Officer Suarez confirmed he initiated the traffic stop of the Tesla because of its speed and its darkly tinted windows. He did not recall the vehicle swerving or driving erratically. Officer Suarez also confirmed Defendant provided his driver's license and registration without issue when requested and did not fumble or drop it. Officer Suarez further testified Defendant did not have bloodshot or watery eyes and was not stumbling or swaying when he stepped out of the car.

Officer Suarez acknowledged he did not conduct a DUI investigation and that indicators for a DUI investigation were not present, but he also testified that “it smelled like weed in the car” and “[s]o therefore, [Defendant] could have smoked, so I had suspicion to believe he was high o[n] marijuana.” Officer Suarez stated he asked Defendant to step out of the vehicle “because it smell[ed] like weed in the car[.]” Officer Suarez also acknowledged Defendant told him he had a valid medical marijuana card during the stop, but he did not request a copy of Defendant's card.

Officer Suarez testified he could not discern what was inside the bag when it was inside the vehicle in the backseat. He stated the bag was unzipped but there was a flap over it that he had to lift to open the bag, and he could not see inside the bag without opening it.

Defendant filed a motion to suppress physical evidence. The State filed a response in opposition. The trial court held an evidentiary hearing. During the hearing, Officer Suarez's body camera footage was admitted into evidence and played for the trial court. At the conclusion of the hearing, the trial court denied the motion to suppress. No written order was issued.

The trial court orally found the State satisfied its burden and established an exception to the warrant requirement based on the officer's testimony that he smelled the odor of burnt marijuana and asked the Defendant to step out of the vehicle. The trial court further noted it observed from the body camera footage that the Defendant stepped out of the vehicle with the bag and then threw it “conspicuously” into the backseat of the vehicle. The trial court also noted the Defendant tried to walk back towards the backseat after observing the officer retrieving the bag from the backseat and had to be asked to step back again by the officer. Finally, the trial court noted that the Defendant himself stated he had smoked marijuana that morning in his car, which the trial court found to be additional evidence to the odor observed by the officer. The trial concluded, “[b]ased on the legality of the stop and the video and the officer's testimony[,]” that the officer had “probable cause to believe that an offense had been or was being committed and therefore had reason to conduct the search.”

Following the denial of his motion to suppress, Defendant entered a plea to the charges against him and reserved his right to appeal the trial court's denial of his motion to suppress. This appeal timely followed.

Legal Analysis

On appeal, Defendant contends the trial court erred in denying his motion to suppress the physical evidence recovered from his vehicle. “A ruling on a motion to suppress is presumed correct, and the appellate court ‘must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling.’ ” Hedvall v. State, 283 So. 3d 901, 918 (Fla. 3d DCA 2019) (quoting State v. Smith, 172 So. 3d 993, 996 (Fla. 1st DCA 2015)). Nevertheless, “[a] trial court's factual findings must be supported by competent substantial evidence, and findings of law are reviewed de novo.” Hedvall, 283 So. 3d at 918.

Florida courts are required to follow the United States Supreme Court's interpretations of the Fourth Amendment. Art. I, § 12, Fla. Const.; State v. Betz, 815 So. 2d 627, 631 (Fla. 2002). The Supreme Court has held that “officers may search an automobile without having obtained a warrant so long as they have probable cause to do so.” Collins v. Virginia, 584 U.S. 586, 592 (2018) (citing California v. Carney, 471 U.S. 386, 392-93 (1985)).

Probable cause “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity”; it “is not a high bar.” Dist. of Columbia v. Wesby, 583 U.S. 48, 57 (2018) (emphasis added) (quotations and citations omitted). As explained by Justice Canady, “[t]he probable cause standard merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief that evidence of a crime may be found. It does not demand any showing that such a belief be correct or more likely true than false.” Harris v. State, 71 So. 3d 756, 776 (Fla. 2011) (Canady, C.J., dissenting) (emphases added) (quotations and citations omitted), rev'd sub nom. Florida v. Harris, 568 U.S. 237 (2013).

Indeed, “[p]robable cause is more than bare suspicion but is less than beyond a reasonable doubt and, indeed, is less than a preponderance of the evidence.” J.J. v. State, 312 So. 3d 116, 120 (Fla. 3d DCA 2020) (en banc) (quoting United States v. Burnett, 827 F.3d 1108, 1114 (D.C. Cir. 2016)). “Probable cause doesn't require proof that something is more likely true than false. It requires only a fair probability, a standard understood to mean something more than a bare suspicion but less than a preponderance of the evidence at hand.” Id. (quoting United States v. Denson, 775 F.3d 1214, 1217 (10th Cir. 2014)). All probable cause requires is “the kind of ‘fair probability’ on which ‘reasonable and prudent [people,] not legal technicians, act.’ ” Harris, 568 U.S. at 244.

A police officer need not witness a crime in order to have probable cause. Actions innocent in themselves can form probable cause that a crime was, is, or is about to be committed. As Chief Justice William Rehnquist explained for the Supreme Court majority, there can “of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot.” United States v. Sokolow, 490 U.S. 1, 9 (1989) (quoting Reid v. Georgia, 448 U.S. 438, 441 (1980)). In Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983), Chief Justice Rehnquist, again writing for the majority, noted “probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Therefore, “innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens demands.” Id. “In making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of non-criminal acts.” Id.

Cannabis, whose popular name is marijuana, is classified as a controlled substance in Florida. § 893.03(1)(c), Fla. Stat. Simple possession, even without an intent to distribute, remains a crime constituting a felony or misdemeanor depending on whether the amount is more or less than 20 grams. § 893.13(6)(b), Fla. Stat. Possession of any amount with the intent to sell remains a felony. § 893.13(1)(a)(2), Fla. Stat.

A limited exception exists for medical use.¹ Possession is lawful under this exception in narrow circumstances defined by regulations using carefully defined terms. Among other limitations, the medical use exception applies only for marijuana consisting of no more than certain, limited amounts; “acquired from a medical marijuana treatment center”; obtained pursuant to a “medical marijuana use registry identification card” issued by a “qualified physician” which card must be produced upon the request of a law enforcement officer; and administered in a location other than “in plain view of or in a place open to the general public; in a school bus, a vehicle, an aircraft, or a boat; or on the grounds of a school.” See generally § 381.986, Fla. Stat.

Defendant argues that the sole basis for searching his vehicle was Officer Suarez's detection of the odor of burnt marijuana. Defendant asserts this was insufficient to establish probable cause to search under the automobile exception to the warrant requirement because, as the holder of a medical marijuana license, he was lawfully permitted to smoke marijuana. As such, the fact that Officer Suarez smelled previously burnt marijuana was insufficient to create in Officer Suarez a belief that an offense had been or was being committed.

In making this argument, Defendant challenges the continuing validity of established Florida case law, which has held that the “odor of previously burnt marijuana ․ unquestionably provided the police officers on the scene probable cause to search ․ the respondent's vehicle.” Betz, 815 So. 2d at 633. Florida case law generally refers to this as the “plain smell” doctrine. See, e.g., Baxter v. State, 48 Fla. L. Weekly D2084, at *4 (Fla. 5th DCA Oct. 27, 2023), opinion withdrawn and superseded on reh'g en banc, 389 So. 3d 803 (Fla. 5th DCA 2024) (explaining “what is generally known as the plain smell doctrine—that is, that the smell of cannabis is itself sufficient to establish probable cause”).

Since the enactment of the recent changes to state and federal law relating to medical marijuana, Florida district courts have been grappling with the issue of whether the “plain smell” doctrine remains valid. See Owens v. State, 317 So. 3d 1218, 1220 (Fla. 2d DCA 2021) (holding that an officer smelling the odor of marijuana still has probable cause to believe that the odor indicates the illegal use of marijuana despite the recent legalization of hemp and, under certain circumstances, marijuana); Hatcher v. State, 342 So. 3d 807, 811-14 (Fla. 1st DCA 2022) (Bilbrey, J., specially concurring) (suggesting court should recede from prior case law on plain smell doctrine following changes in Florida and federal law); State v. Fortin, 383 So. 3d 820, 821, 823 (Fla. 4th DCA 2024) (determining as a matter of law that officer's visual and olfactory perceptions of fresh marijuana provided probable cause to search vehicle and citing favorably to Owens); Hoehaver v. State, 389 So. 3d 766, 768 (Fla. 5th DCA 2024) (noting no recent case law has affirmatively held marijuana odor alone is insufficient to establish probable cause and stating officer's reliance on the current state of the law was objectively reasonable); Hoehaver, 389 So. 3d at 768-69 (Kilbane, J., specially concurring) (stating case did not require discussion of plain smell doctrine's continuing validity given facts of case); Baxter, 389 So. 3d at 806 (en banc) (holding that “[b]ecause the ‘plain smell’ of cannabis is no longer clearly indicative of criminal activity, it alone cannot provide reasonable suspicion to support an investigatory detention”).

Deciding if the “plain smell” precedents are still valid would require us to decide whether, under the new regime of laws where possession of cannabis remains a crime with a narrow exception for medical use, the “plain smell” of burnt cannabis, while possibly innocent, meets the “less than a preponderance of the evidence,” “fair probability,” and “not [ ] high bar” indicating probable cause of possession for use other than the limited exception for medical use. See J.J., 312 So. 3d at 120; Wesby, 583 U.S. at 57.

We refrain from deciding whether “plain smell” is still viable. We also refrain from deciding whether the facts of this case provide an example of “plain smell plus,” which would support probable cause even if plain smell alone were not sufficient. See Aldama v. State, 394 So. 3d 148, 151 (Fla. 3d DCA 2024) (“[T]he troopers’ questioning of [the defendant] eliminated the only lawful explanations for the smell prior to their search.”).

As in Baxter, Officer Suarez relied on what was longstanding and well-established precedent at the time. Such objectively reasonable reliance on binding precedent “is ‘blameless police conduct’ that ‘comes within the good-faith exception and is not properly subject to the exclusionary rule.’ ” Baxter, 389 So. 3d at 812 (quoting Davis v. United States, 564 U.S. 229, 249 (2011)). Accordingly, affirmance is required under these circumstances.

Affirmed.

While I agree with the result, I do not agree with the road the majority took to reach it. Upon approaching the vehicle, Officer Suarez immediately smelled burnt marijuana and Wright-Johnson admitted to smoking marijuana in his vehicle, which is not lawful. See Art. X, § 29(c)(4), Fla. Const.; § 381.986(12)(c), Fla. Stat. (2021). Based upon the totality of the circumstances, Officer Suarez had probable cause to search. See Aldama v. State, 394 So. 3d 148, 151 (Fla. 3d DCA 2024) (“Thus, the totality of the circumstances provided the troopers with probable cause to conduct the automobile search upon the plain smell of marijuana and the dispelling of any lawful explanations for such in the vehicle.”); Hoehaver v. State, 389 So. 3d 766, 769 (Fla. 5th DCA 2024) (Kilbane, J., concurring specially) (“Upon eliminating the only lawful explanations for the smell, Detective Bridge had probable cause to search the vehicle for illegal cannabis where, as here, the stop was not prolonged.”).

FOOTNOTES

1.   See § 381.986, Fla. Stat. (2022) (authorizing medical marijuana); § 893.02(3), Fla. Stat. (2021) (excluding medical marijuana from the Florida Comprehensive Drug Abuse Prevention and Control Act's definition of “cannabis”).

LOGUE, C.J.

MILLER, J., concurs.