The ruling by a three-judge panel of the 5th District Court of Appeal in a Lake County case could add complexity to police searching vehicles without obtaining warrants.
The case stemmed from a Groveland police officer in September 2020 stopping a Lyft car for speeding and tag lights that weren’t working. The officer subsequently called for a drug-sniffing dog, Polo, which alerted to the presence of drugs when it walked around the car.
Officers searched the car and found a bag that contained marijuana, crack cocaine, ecstasy and methamphetamine, leading to the arrest of a passenger, Stephon Ford, according to Tuesday’s ruling. Ford tried to get the evidence suppressed by arguing that the dog could not differentiate between illegal marijuana and medical marijuana or hemp.
A circuit judge refused to suppress the evidence, but the appeals court backed Ford’s argument. While other drugs were also found, the appeals court said it is possible that Polo alerted to marijuana in the bag. The pot that was found was not medical marijuana.
“At the time when Polo alerted to a target substance in the Lyft vehicle, the police officers had no way of knowing whether Polo had detected an illegal substance (marijuana, cocaine, heroin, or methamphetamines) or a legal substance, namely the THC in hemp or medical marijuana that was properly prescribed and in the possession of a bona fide medical marijuana card holder. … Whether the substance Polo smelled was legal or illegal was not readily apparent, and thus his alert, alone, could not provide the probable cause needed to justify a warrantless search,” said Tuesday’s main opinion, written by Chief Judge James Edwards.
Judge Jordan Pratt wrote a concurring opinion that said Tuesday’s ruling and a 2024 decision by the appeals court in a case about a police officer smelling marijuana show that “cannabis legalization carries collateral consequences.” Florida voters in 2016 approved a constitutional amendment that broadly allowed medical marijuana, though pot remains illegal under federal law and in other circumstances in Florida.
Pratt wrote that under Tuesday’s decision, “dogs trained to alert on cannabis can no longer provide the sole basis for a stop or search.” Nevertheless, he said police could continue to use alerts by drug-sniffing dogs to provide a basis for searching cars.
“An alert by a dog trained not to alert to cannabis — or to alert to cannabis differently than it alerts to other drugs — can still on its own supply probable cause,” Pratt wrote. “And for another thing, even without such canine training, an undifferentiated alert can supply probable cause when combined with an officer’s questions ruling out the presence of lawful cannabis. Officers easily can be trained to ask such questions in conjunction with a dog’s undifferentiated alert.”
Judge John MacIver concurred with the result of the majority opinion, though he did not sign on.
Edwards described the case as being “of first impression,” which generally indicates it is the first time the issue has been decided. Tuesday’s ruling, however, cited an August ruling by the full 5th District Court of Appeal that said a police officer could not use smelling marijuana as the sole basis to search a car and arrest a man.
In the Groveland case, Ford pleaded no contest to drug charges and was sentenced to 68 months in prison after the circuit judge denied his motion to suppress the evidence, Tuesday’s main opinion said. Ford, however, reserved the right to appeal.
While the appeals court agreed with Ford on the suppression issue, it upheld his conviction because of what is known as a “good faith” exception. It said the exception applied because the circuit judge followed what was legal precedent at the time.
But Edwards wrote that Tuesday’s ruling will apply in the future in the 5th District, which is based in Daytona Beach and includes areas such as Jacksonville and Ocala.
“Is the undifferentiated alert behavior of a properly trained police drug-sniffing dog sufficient to supply the sole probable cause for a warrantless search of a car, when that K-9 officer, while trained to alert to THC among other substances, cannot distinguish between illegal pot and legal medical marijuana or hemp? In other words, is that sniff up to snuff?” Edwards wrote. “Going forward, that dog won’t hunt.”
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This article appears in Jan 2-8, 2025.