FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-4325

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JORDAN JOHNSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Leon County.

Robert E. Long, Judge.

July 9, 2019

PER CURIAM.

Jordan 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.

Officers 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. 

On 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., 
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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 medical-marijuana user. 

There 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).

Finally, 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 
3

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 

circumstances.

In 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.

AFFIRMED.

WETHERELL, WINOKUR, and M.K. THOMAS, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Andy Thomas, Public Defender, and Megan Long, Assistant Public 

Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Damaris E. Reynolds and 

Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for 

Appellee.