MARK EUGENE HATCHER

v.

STATE OF FLORIDA

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.¹ He contends that the odor could have instead come from legal hemp, which is indistinguishable from marijuana by sight or smell.

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 around³:00 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.² This timely appeal followed.

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, U.S. 411, (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.³ 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.

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.

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”).

AFFIRMED.

ROBERTS, J., concurs; BILBREY, J., specially concurs with opinion.