Is the “Smell of Weed” Still Enough for an Arrest in Orlando?

By: John Guidry

We have science to thank for much of our progress in the last thousand years. Any guess as to what is the most important technology ever invented? The wheel? The printing press? Hands down, whoever invented fire technology may have advanced human civilization more than any other tech, and we’ll probably never know which caveman or cavewoman came up with that brilliant idea. You need not watch Naked and Afraid to know that fire is everything.

But technology has created its share of problems. Are we watching too much TV? Are kids interacting too much with tech rather than actual human beings? What we do know is that technology is now creating a massive problem for prosecutors. It started back on July 1, 2019, the day hemp became legal in Florida, and it has evolved into a full-blown legal crisis in 2025.

The problem is simple: hemp is the same plant as marijuana. They both look the same, burn the same, and smell the same. The only difference is the THC level—hemp is 0.3% or less, while marijuana is much higher. For years, the police relied on their noses, but as of 2025, that “plain smell” trick is officially dead in the eyes of the law.

Facing marijuana or hemp-related charges in Orlando? Don’t let a “guess” by an officer turn into a conviction. Call John Guidry today at (407) 423-1117 to discuss your defense.

The Legal Breakdown: Why “Smell” is No Longer Probable Cause

The evolution of cannabis law in Florida has moved faster than a hurricane. While scientists can send people to the moon, our local crime labs have historically struggled to tell the difference between a legal hemp joint and an illegal marijuana one.

• The Technical Gap: Most police departments use Gas Chromatography (GC) and Mass Spectrometry (MS). These machines can tell you THC is present, but they can’t tell you the level (concentration). To distinguish hemp from marijuana, you need High Performance Liquid Chromatography (HPLC), which most public labs like the FDLE have been slow to fully implement for every single misdemeanor case.
• Baxter v. State (Fla. 5th DCA 2024): In our local Fifth District Court of Appeal—covering Orange, Seminole, Volusia, and Lake County—the court ruled that because hemp and medical marijuana are legal and smell exactly like illegal cannabis, the “plain smell” of marijuana alone is no longer enough to justify a search.
• Ford v. State (Fla. 5th DCA 2025): The courts took it a step further recently, holding that even a K-9 alert may not be enough for probable cause if the dog isn’t trained (or isn’t capable) of distinguishing between legal hemp and illegal “street” weed.
• Williams v. State (Fla. 2d DCA 2025): A major en banc ruling in late 2025 confirmed that since the odor is indistinguishable from legal substances, the “plain smell doctrine” as we once knew it is officially gone. Law enforcement now needs a “totality of the circumstances”—meaning they need more than just a whiff of something funky to search your car.

John’s Takeaways

• Odor is Not Enough: In 2025, if the only reason a cop searched your car was “the odor of cannabis,” that search is likely unconstitutional under Baxter and Williams.
• The Lab Dilemma: Unless the State pays for expensive HPLC testing to prove your THC level is above 0.3%, they may have a massive “failure of proof” on their hands for misdemeanor charges.
• Confessions are Dangerous: The police can’t tell the difference by looking or smelling, so they will try to get you to “blab” and admit it’s “the real stuff.” Shut up and ask for a lawyer.
• Packaging Matters: If your substance is in a reputable hemp container, it’s much harder for the State to argue they had a reason to arrest you.
• Local Policy Shifts: While counties like Seminole and Brevard were once aggressive, many State Attorneys are now dropping simple possession cases where no lab work exists to disprove a “hemp defense.”

The justice system is harsh, and it is a sad but true fact that some officers still act like it’s 1993, ignoring the new 2025 rulings on probable cause. If you were arrested because an officer or a dog “smelled” something, you need a trial attorney who knows the latest case law and the technical limitations of the FDLE’s machines.

I’ve been fighting these battles in Orange, Seminole, Osceola, Lake, Brevard, and Volusia County for over 30 years. Let’s hold the State to their burden of proof.

Facing these charges? Call John at (407) 423-1117.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.