final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Leon County. Robert E.
Thomas, Public Defender, and Megan Long, Assistant Public
Defender, Tallahassee, for Appellant.
Moody, Attorney General, and Damaris E. Reynolds and Jennifer
J. Moore, Assistant Attorneys General, Tallahassee, for
Johnson appeals his conviction for carrying a concealed
weapon. His only argument on appeal is that the trial court
should have granted his motion to suppress. We reject this
argument and affirm.
initiated a 2:00 a.m. traffic stop after noticing a headlight
out on Johnson's car. Officers then smelled burnt
marijuana, detained Johnson, and searched the car. Inside the
car, they found the gun that led to the charge.
appeal, Johnson acknowledges "the long line of cases
that hold that the smell of burnt marijuana coming from a
vehicle provides an officer with probable cause to detain the
defendant and conduct a warrantless search." Init. Br.
at 8 (citing State v. T.P., 835 So.2d 1277 (Fla 4th
DCA 2003); State v. Williams, 967 So.2d 941 (Fla.
1st DCA 2007); State v. Jennings, 968 So.2d 694
(Fla. 4th DCA 2007)); see also State v. Betz, 815
So.2d 627, 633 (Fla. 2002) ("As the odor of previously
burnt marijuana certainly warranted a belief that an offense
had been committed, this unquestionably provided the police
officers on the scene probable cause to search the passenger
compartment of the respondent's vehicle."). But, he
contends, those cases became irrelevant after Florida
authorized medical marijuana. In other words, he argues,
while the officer's "search based on the odor of
marijuana was constitutional prior to the enactment of
[§ 381.986, Fla. Stat.], now that medical marijuana is
legal, it is no longer a sufficient basis for probable
cause." Init. Br. at 7. He does not argue that he is a
medical-marijuana user; his argument is that the smell alone
is no longer enough since someone might be a
are several problems with this argument. First, as the State
notes, at the time of the stop, Florida's
medical-marijuana laws did not authorize smokable
marijuana, see § 381.986(1)(j)(2), Fla. Stat.
(2017) (excluding from "medical use" the "use,
or administration of marijuana in a form for smoking"),
and the officers smelled burnt marijuana. Second, Florida law
did not allow use in "a vehicle" other than
"for low-THC cannabis." Id. §
381.986(1)(j)(5)(b). Third, although Florida law does not
criminalize all use of medical marijuana, possession of
marijuana remains a crime under federal law. See 21
U.S.C. § 812(c); see also Gonzales v. Raich,
545 U.S. 1, 27 (2005) (noting that federal controlled
substance act "designates marijuana as contraband for
any purpose; in fact, by characterizing marijuana as
a Schedule I drug, Congress expressly found that the drug has
no acceptable medical uses"). Fourth, even if smoking
marijuana were legal altogether, the officers would have had
probable cause based on the fact that Johnson was operating a
car. See § 316.193(1)(a), Fla. Stat.
(criminalizing driving under the influence of drugs).
even putting all of this aside, the possibility that
a driver might be a medical-marijuana user would not
automatically defeat probable cause. The probable cause
standard, after all, is a "practical and common-sensical
standard." Florida v. Harris, 568 U.S. 237, 244
(2013). It is enough if there is "the kind of 'fair
probability' on which 'reasonable and prudent people,
not legal technicians, act." Id. (some marks
omitted). Here, we cannot say that it would be unreasonable
for an officer to conclude there is a fair probability that
someone driving around at 2:00 a.m., smelling of marijuana,
is acting unlawfully. And this is true whether or not Florida
law allows the medical use of marijuana in some
short, Johnson has not shown that the trial court's order
denying suppression-an order that comes to us "clothed
with a presumption of correctness," Terry v.
State, 668 So.2d 954, 958 (Fla.1996)-was wrong.
WETHERELL, WINOKUR, and M.K. ...