RAY, J.
On appeal from the Circuit Court for Baker County. James M. Colaw, Judge.
Jessica J. Yeary, Public Defender, and Megan Lynne Long, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Robert "Charlie" Lee, Assistant Attorney General, Tallahassee, for Appellee.
RAY, J.
Following a traffic stop, law enforcement conducted a warrantless search of Mark Eugene Hatcher's vehicle and discovered methamphetamine and a digital scale. He argues on appeal, as he did below, that the officer lacked probable cause to search the vehicle based solely on the odor of marijuana. He contends that the odor could have instead come from legal hemp, which is indistinguishable from marijuana by sight or smell.
Hatcher also challenges the legality of the traffic stop that led to the search. As to this issue, we affirm without discussion.
Even so, we decline to address that scenario here because the smell of marijuana was only one of the factors the officer relied on in making the probable cause determination. Considering the totality of the circumstances, as we must, we conclude that it was objectively reasonable for the officer to conduct the search.
I.
At around 3:00 a.m. on December 6, 2019, a sergeant with the Baker County Sheriff's Office noticed a van driving erratically. As the van approached him, it veered completely out of its lane for no apparent reason and traveled through marked parallel parking spaces for about half a block. The van looked like it would strike the curb and run up onto the sidewalk.
Concerned that the driver was impaired or needed medical attention, the sergeant initiated a traffic stop. Hatcher was driving the van with a female passenger. The sergeant questioned Hatcher about his driving and asked to see his license. Hatcher said he was "getting over" to make a turn but admitted that he did not have a driver's license. Based on the sergeant's training and experience, he believed that Hatcher's laid-back and lethargic demeanor suggested that he was under the influence of marijuana. The sergeant also smelled the odor of burnt marijuana coming from inside the van. When asked whether there was any marijuana in the van, Hatcher replied that he had just finished smoking a blunt and had thrown it out the window before the stop occurred. The sergeant testified that a blunt is a "marijuana cigarette," which is made by removing the tobacco from a cigar and replacing it with marijuana.
A K9 officer arrived on the scene and deployed his dog to conduct a sniff of the van. The dog was trained to detect cannabis, cocaine, heroin, methamphetamine, and MDMA (also known as ecstasy), although he cannot distinguish between hemp and marijuana. The dog alerted at the driver's door. The ensuing search uncovered a digital scale with a leafy green residue on it and pills that were believed to be MDMA. The K9 officer could not say with certainty whether the dog had alerted to the marijuana or the pills. Based on the evidence found in the vehicle, the State charged Hatcher with possession of a controlled substance (count I), use or possession of drug paraphernalia (count II), and driving without a valid driver's license (count III).
Before trial, Hatcher moved to suppress the items discovered in his vehicle, arguing that police lacked probable cause for the search. The trial court denied the motion, and the case proceeded to trial where a jury found Hatcher guilty of counts II and III. This timely appeal followed.
The jury acquitted Hatcher of count I.
II.
In reviewing a trial court's decision on a motion to suppress, this Court construes the evidence in the light most favorable to sustaining the trial court's ruling, accepts the trial court's findings if they are supported by competent, substantial evidence, and reviews de novo the application of the law to those facts. Channell v. State, 257 So.3d 1228, 1232 (Fla. 1st DCA 2018).
The Fourth Amendment of the United States Constitution and article I, section 12 of the Florida Constitution protect individuals from unreasonable searches and seizures. In construing Florida's constitutional protection, we must follow United States Supreme Court decisions interpreting the Fourth Amendment. Art. I, § 12, Fla. Const.
Searches conducted without a warrant are per se unreasonable under the Fourth Amendment subject only to a few exceptions. Katz v. United States, 389 U.S. 347, 357 (1967). One of these exceptions is for searches of vehicles. Under the "automobile exception," police may search a vehicle without a warrant so long as they have probable cause to believe that it contains contraband or evidence of a crime. See Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) ("If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more." (citing California v. Carney, 471 U.S. 386, 393 (1985))); see also State v. Betz, 815 So.2d 627, 633-34 (Fla. 2002).
Probable cause is a "flexible, common-sense standard." Florida v. Harris, 568 U.S. 237, 240 (2013) (quoting Illinois v. Gates, 462 U.S. 213, 239 (1983)). It "turn[s] on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules." Id. at 244 (quoting Gates, 462 U.S. at 232). Probable cause "is not a high bar." Kaley v. United States, 571 U.S. 320, 338 (2014). It is enough if there is "the kind of 'fair probability' on which 'reasonable and prudent [people,] not legal technicians, act.'" Harris, 568 U.S. at 244 (alteration in original) (quoting Gates, 462 U.S. at 238, 231).
In determining whether probable cause exists, a reviewing court should be mindful of "two basic and well-established principles of law." Dist. of Columbia v. Wesby, 138 S.Ct. 577, 588 (2018). First, the court must consider "the whole picture," rather than review each fact in isolation. Id. (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). This totality-of-the-circumstances approach "allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.'" United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting Cortez, 449 U.S. at 418). Second, the court must not "dismiss outright any circumstances that were 'susceptible of innocent explanation.'" Wesby, 138 S.Ct. at 588 (quoting Arvizu, 534 U.S. at 277). "[I]nnocent behavior frequently will provide the basis for a showing of probable cause," and "the relevant inquiry is . . . the degree of suspicion that attaches to particular types of non-criminal acts." Gates, 462 U.S. at 243 n.13.
III.
With this constitutional framework in mind, we turn to Hatcher's claim that the officer lacked probable cause to search his van based solely on the odor of marijuana. He acknowledges our precedent holding that "odor alone" is enough but contends that it no longer applies because hemp is now legal in Florida and it is impossible to distinguish between hemp and marijuana by sight or smell. Put differently, Hatcher argues that since the odor coming from his van had a potentially legal source, the ensuing search was unreasonable and unlawful under the Fourth Amendment.
There was undisputed testimony at the suppression hearing that hemp and marijuana are indistinguishable by sight or smell. The main difference between the two is their psychoactive component: hemp is cannabis with a delta-9-tetrahydrocannabinol (THC) concentration below 0.3 percent. See § 581.217(3)(d), Fla. Stat. (2019). Hatcher correctly observes that at the time of the traffic stop, state and federal law permitted the possession and smoking of hemp. See 21 U.S.C. § 802(16)(B) (excluding hemp from the definition of "marihuana"); 21 U.S.C. § 812, Schedule I(c)(17) (providing an exception for hemp to the prohibition against possessing a substance containing tetrahydrocannabinols); § 581.217(2)(b), Fla. Stat. (2019) ("Hemp-derived cannabinoids . . . are not controlled substances or adulterants"); § 893.02(3), Fla. Stat. (2019) (excluding hemp from the definition of "cannabis").
Still, we need not resolve whether the smell of marijuana alone remains sufficient to establish probable cause. We must instead consider whether there was probable cause to justify the search based on the totality of the circumstances.
Viewed in the appropriate context, the record amply supported the trial court's determination that probable cause existed to search Hatcher's van. The officer who conducted the stop had eleven years of experience, including several prior traffic stops and arrests that involved the use of marijuana in a vehicle. He had been trained to identify marijuana by sight and smell. The officer stopped Hatcher at 3:00 a.m. because of his erratic driving. When asked about the smell of burnt marijuana and whether there was any marijuana inside the van, Hatcher admitted that he had just smoked a blunt and discarded it before the traffic stop. The officer believed that "blunt" meant a marijuana cigarette, not a hemp cigarette. The officer also noticed that Hatcher's demeanor resembled someone who was under the influence, as he was unusually relaxed and lethargic despite having been pulled over and admitting to not having a valid driver's license.
Based on the officer's observations, training, and experience, as well as Hatcher's statements and demeanor, the officer reasonably believed that Hatcher was under the influence of marijuana he had smoked while driving. Indeed, the trial court noted that the officer "would have been derelict had he not stopped the vehicle, had he not initiated the investigation, and had he not performed in the manner he described."
For all these reasons, we affirm the trial court's denial of Hatcher's motion to suppress.
AFFIRMED
ROBERTS, J., concurs; BILBREY, J., specially concurs with opinion.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
BILBREY, J., specially concurring.
I agree that we are correct to deny Hatcher's challenge to the denial of his dispositive motion to suppress. This is because there was reasonable suspicion for the stop including the possibility that Hatcher was driving under the influence. See Cowart-Darling, 256 So.3d 250, 252 (Fla. 1st DCA 2018) (citing Rodriguez v. United States, 575 U.S. 348, 354 (2015)). Then upon being questioned about the possible smell of marijuana, Hatcher admitted to having just smoked marijuana. Finally, the officer developed probable cause to arrest Hatcher for driving without a valid driver's license, making the search lawful. See State v. Brookins, 290 So.3d 1100, 1106 (Fla. 2d DCA 2020) (citing Chimel v. California, 395 U.S. 752, 763 (1969)) ("A search may be made of the arrestee and any area from which the arrestee might gain possession of a weapon or destructible evidence.").
Hatcher claims that because of recent changes to Florida and federal law, the sight or smell of a substance presumed to be marijuana can no longer provide probable cause to search a vehicle or its occupants. Since that substance might have been legal hemp, I agree with him. Had the search of Hatcher's vehicle been based solely on the smell of what the arresting officer believed to be marijuana, then we should reverse his conviction for possession of drug paraphernalia. I write to discuss Hatcher's contention and recent cases addressing the issue.
People smoke hemp for its purported ability to relieve stress or anxiety, but the fact that hemp is indistinguishable from marijuana has caused concern by law enforcement. See Sophie Quinton, Cannabis Confusion Pushes States to Ban Smokable Hemp, The Pew Charitable Trusts (Jan. 6, 2020), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/01/06/cannabis-confusion-pushes-states-to-ban-smokable-hemp (last visited May 23, 2022).
We have previously held that "the odor of burnt cannabis emanating from a vehicle constitutes probable cause to search all occupants of that vehicle." State v. Williams, 967 So.2d 941, 941 (Fla. 1st DCA 2007). Following the legalization of medical marijuana under Florida law, we reaffirmed Williams. Johnson v. State, 275 So.3d 800, 801 (Fla. 1st DCA 2019). Our holding in Johnson was based in part on smokable medical marijuana not being legal at the time of the search at issue, that medical marijuana could not be legally used in a vehicle at the time, and that federal law continued to prohibit the use of any marijuana. Id. at 801-02. Changes in Florida and federal law have abrogated the basis for our reasoning in Johnson. As a result, I respectfully submit that we should no longer rely on Johnson as we recently did in Collie v. State, 331 So.3d 1240 (Fla. 1st DCA 2022). And in an appropriate case, I would urge this court to consider receding from Johnson and Collie due the statutory changes.
Our holding in Johnson was also based on Johnson potentially driving the vehicle under the influence. As noted, the arresting officer here was also concerned that Hatcher was DUI.
Whether this would need to be the entire court reconsidering these cases en banc, or whether a three-judge panel could do so, I will leave for another day. Normally, "[e]ach panel decision is binding on future panels, absent an intervening decision of higher court or this court sitting en banc." Sims v. State, 260 So.3d 509, 514 (Fla. 1st DCA 2018). However, "legislative amendment of a statute may change the law so that prior judicial decisions are no longer controlling." Health v. State, 532 So.2d 9, 10 (Fla. 1st DCA 1988) (on motion for rehearing). So the legalization of hemp, as discussed below, means Johnson should no longer apply. And the lack of facts in Collie means a reader does not know if the search there occurred before or after the statutory changes.
At the suppression hearing, the arresting officer testified that burning marijuana and burning hemp smell the same. This is understandable since they are the same plant and differ only in their THC content. See IFAS Communications, FAQ - Industrial Hemp Pilot Project - UF/IFAS - University of Florida, Institute of Food and Agricultural Sciences https://programs.ifas.ufl.edu/hemp/faq/# (last visited May 23, 2022). The canine handler testified that a trained drug detection dog cannot distinguish between marijuana and hemp. See Cynthia A. Sherwood et al.., Even Dogs Can't Smell the Difference: The Death of "Plain Smell," As Hemp Is Legalized, 55 Tenn. B.J 14 (Dec. 2019). The Florida Department of Law Enforcement uses an involved scientific process to distinguish between hemp and marijuana. Forensics, https://www.fdle.state.fl.us/Forensics/RHDocuments/Hemp-MJ.aspx (last visited May 19, 2022).
Following our decision in Johnson, there was an important change to Florida law with the enactment of the "State hemp program," codified in section 581.217, Florida Statutes (2020). See Ch. 2019-132, § 1, Laws of Florida. It is now legal under Florida and federal law to smoke and possess hemp. The Legislature found that "[h]emp is an agricultural commodity" and that "[h]emp-derived cannabinoids . . . are not controlled substances or adulterants." § 581.217(2)(a)-(b), Fla. Stat. The Legislature also changed the definition of cannabis to exclude medical marijuana and hemp. § 893.02(3), Fla. Stat. (2020). As the majority opinion points out, at the federal level the definition of marijuana, which remains illegal even for medical purposes, now also excludes hemp. See 21 U.S.C. § 802(16)(B)(i) (2020).
Hatcher correctly argues our case Kilburn v. State, 297 So.3d 671 (Fla. 1st DCA 2020), supports his position. There, we held that the trial court erred in denying a motion to suppress when the arresting officer noticed "the butt of a handgun sticking out of the appellant's waistband." Id. at 672. We observed that the statute prohibiting the carrying of a concealed weapon did not apply to a person licensed to carry a concealed weapon, and Kilburn could not be detained just to determine whether he was licensed. Id. at 67576. We stated, "A potentially lawful activity cannot be the sole basis for a detention. If this were allowed, the Fourth Amendment would be eviscerated." Id. at 675.
In Kilburn we considered whether there was a reasonable suspicion of criminal activity such that Kilburn could be detained. Id. at 673. Reasonable suspicion "is a less demanding standard than probable cause." Illinois v. Wardlow, 528 U.S. 119, 123 (2000); see also Baptiste v. State, 995 So.2d 285, 291 (Fla. 2008). If a potentially lawful activity cannot be the sole basis for detention premised on a reasonable suspicion of criminal activity, then potentially lawful activity alone (such as possessing a substance which could be hemp) cannot meet the higher standard of probable cause. Hatcher's possession of a substance that smelled like marijuana was potentially lawful since the substance was indistinguishable from hemp without scientific testing.
Hatcher's admission that he had just smoked a blunt resolved any issue of whether he had possessed a lawful substance.
In Owens v. State, 317 So.3d 1218, 1219 (Fla. 2d DCA 2021), the Second District continued to follow our holding in Johnson despite the legalization of hemp. But I respectfully submit that Owens contains a substantial error. There, the court held that the fact "that the substance is hemp" may "provide an affirmative defense to a charge." Id. at 1220. That is incorrect. "The State's burden is to prove the elements of the crime beyond a reasonable doubt." Cardona v. State, 185 So.3d 514, 519-20 (Fla. 2016). In a drug possession case, it is the State's burden to prove the illegal nature of the substance as an element of the offense. See § 893.13(6), Fla. Stat. (2019); Fla. Std. Jury Instr. (Crim.) 25.7 (stating that to prove the crime of possession of a controlled substance, it is the State's burden to prove beyond a reasonable doubt what the substance was); see also State v. Burrows, 940 So.2d 1259 (Fla. 1st DCA 2006) (requiring the State to prove that the substance the defendant possessed was cocaine as an element of the offense). As a result, a defendant does not have to prove that the substance was in fact legal. See Fla. Std. Jury Instr. (Crim.) 3.7 ("The defendant is not required to present evidence or prove anything.").
If the search in Collie occurred after the statutory changes, then our reliance on Owens was misplaced. As in Kilburn, an officer's perception of a potentially lawful substance cannot be the sole basis for a search. And the changes in Florida and federal law following the search in Johnson have made hemp legal to possess. Accordingly, in the appropriate case I would urge this court to reconsider Johnson and Collie. Here, however, even excluding the smell of purported marijuana, the stop and search were legal. So we are correct to affirm.
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