Was the search based on smell? Since hemp became legal, the odor of cannabis alone is a much weaker basis for a search. See how that plays out in Odor of Cannabis, part of the search and seizure defense.
Where Marijuana Sits in Florida Law
Cannabis is still a controlled substance in Florida, and the charge depends on the amount and the conduct. Possession of twenty grams or less is a misdemeanor, possession of more than twenty grams is a third-degree felony, and the sale, delivery, or cultivation of cannabis is a felony. At the top end, more than twenty-five pounds or three hundred or more plants becomes trafficking, with a mandatory minimum. So a marijuana case can run anywhere from a misdemeanor citation to years of mandatory prison, and the line between them is the weight.
| Amount or conduct | Charge level |
|---|---|
| Twenty grams or less | Misdemeanor possession |
| More than twenty grams | Third-degree felony possession |
| Sale, delivery, or cultivation | Felony, degree depending on the facts |
| More than 25 pounds, or 300 or more plants | Trafficking, with a mandatory minimum |
The Hemp Problem, and Why It Helps the Defense
This is the part of a marijuana case the State would rather skip. Since 2019, Florida law has made hemp legal, defining it under section 581.217 as cannabis with a delta-9 THC concentration at or below three-tenths of one percent. Hemp and marijuana come from the same plant, they look identical, and they smell identical. The only difference between legal hemp and illegal marijuana is the concentration of THC. That matters enormously, because to convict, the State has to prove the substance was marijuana rather than hemp, which means proving it was above the three-tenths-of-a-percent line. A standard cannabis identification, the microscope and the color test crime labs have used for decades, confirms that a substance is cannabis. It does not measure how much THC is in it. Florida’s Second District has already reversed a cannabis trafficking conviction where the State relied on appearance and odor without chemically testing the substance to rule out legal hemp. The gap between proving cannabis and proving illegal marijuana is a real one, and it is exactly the kind of forensic question I am built to press.
Odor and Searches After Williams
The hemp change did more than complicate the State’s proof. It reshaped when the police may search at all. For decades, the smell of cannabis was treated as automatic probable cause under what courts called the plain-smell doctrine. But because legal hemp and lawful medical marijuana cannot be told apart from illegal marijuana by odor, the Second District Court of Appeal, sitting en banc, held in October 2025 that the smell of cannabis standing alone no longer establishes probable cause for a search, receding from its earlier decision in Owens. See Williams v. State, No. 2D2023-2200 (Fla. 2d DCA Oct. 1, 2025). That ruling is binding across the Tampa Bay area, including Hillsborough, Pinellas, Pasco, Manatee, Sarasota, and DeSoto counties, and the court asked the Florida Supreme Court to settle the question for the whole state. Odor is not erased from the picture: a later decision, Cherfils v. State, No. 2D2023-1932 (Fla. 2d DCA 2025), explained that the smell of cannabis combined with other facts, such as an admission or a sign of recent use, can still support a search. But odor by itself, on a stop after October 1, 2025, is now a suppression issue rather than a green light, which puts a motion to suppress near the front of any marijuana case.
Cultivation and Grow Houses
Growing cannabis is a felony, and Florida treats an indoor operation more harshly still. Maintaining a structure for the cultivation or trafficking of cannabis is a grow-house offense under section 893.1351, and the penalties climb when the number of plants is large or when a minor is present in the structure. These cases turn on who controlled the space and the plants, which raises the same constructive-possession problems that run through any drug case, on the possession page.
Medical Marijuana
Florida’s medical-use program under section 381.986 makes cannabis lawful for a qualified patient who holds a valid registration and stays within the program’s limits. Use or possession outside the program is not protected, and the boundaries of the program, the registration, the form, and the amount, are where a medical case lives or fails. A valid medical authorization can be a complete answer to a possession charge for the cannabis it covers.
How I Approach a Marijuana Case
The first questions I ask are whether the State can prove the substance was illegal marijuana rather than legal hemp, and how it intends to do so, because that is the soft spot the hemp law created. From there it is the search, the weight in a felony or trafficking case, the constructive-possession problem in a shared space or a grow house, and whether a diversion path fits. The forensic identity question runs underneath all of it, which I cover on the challenging the drug evidence page.
Related: Drug crimes overview, Challenging the drug evidence, Possession of a controlled substance, and Trafficking and mandatory minimums.
I am one of six ACS-CHAL Forensic Lawyer-Scientists in Florida, with chromatography training from Axion Analytical Labs in Chicago. When a case turns on what a substance is, or on the concentration inside it, I read the laboratory work the way the analyst does. More on the forensic lawyer-scientist credential.
Common Questions
Is marijuana still illegal in Florida?
Outside the medical program, yes. Possession of twenty grams or less is a misdemeanor, more than twenty grams is a third-degree felony, and sale, delivery, or cultivation is a felony. Large amounts cross into trafficking. Florida's medical-use program makes cannabis lawful for qualified registered patients within the program's limits.
What is the difference between hemp and marijuana?
They are the same plant and are identical in look and smell. The only legal difference is the concentration of delta-9 THC: hemp is defined as cannabis at or below three-tenths of one percent, and anything above that line is marijuana. To convict, the State has to prove the substance was above that line, which a standard cannabis identification does not measure.
Can the State prove my cannabis was not legal hemp?
That is the question worth pressing. A typical crime-lab identification confirms that a substance is cannabis but does not quantify its THC. Without testing that measures the THC concentration, proving the substance was illegal marijuana rather than legal hemp can be a real problem for the State.
Does the smell of marijuana let police search my car?
Not on odor alone, at least not in the Tampa Bay area. In October 2025 the Second District Court of Appeal held in Williams v. State that the smell of cannabis by itself no longer establishes probable cause for a search, because legal hemp and lawful marijuana smell the same as illegal marijuana. That decision is binding in Hillsborough, Pinellas, Pasco, Manatee, Sarasota, and DeSoto counties. Odor combined with other facts can still justify a search, but a search based only on smell after October 1, 2025 is a strong candidate for a motion to suppress.
What is a marijuana grow house charge?
Maintaining a structure for the cultivation or trafficking of cannabis is a grow-house offense under section 893.1351, with penalties that increase when there are many plants or when a minor is present. These cases turn on who controlled the space and the plants, which raises the same constructive-possession questions as any drug case.
This page is general information about Florida law, not legal advice, and it does not create an attorney-client relationship. The charge and the defenses turn on the substance, the amount, and the facts, and the law can change, so confirm how it applies with counsel. Every case is different, and past results do not guarantee a similar outcome.
