Jackie Perczek files Amicus Brief on Behalf of the Florida Association of Criminal Defense Lawyers

Jackie Perczek, as co-chair of the Amicus Committee of the Florida Association of Criminal Defense Lawyers, filed an amicus brief on behalf of FACDL and Professor Catherine Arcabascio of the Shepard Broad College of Law, Nova Southeastern University, in Baxter v. State, No. 5D23-0118 (Fla. 5th DCA), which is scheduled to be heard en banc on January 29, 2024. In Baxter, the en banc Florida Fifth District Court of Appeal sought amicus submissions on whether an officer’s belief that the smell coming from inside a stopped vehicle is marijuana is by itself enough to establish reasonable suspicion of criminal activity for an investigatory detention despite Florida laws allowing for the possession and use of hemp, the smell of which is indistinguishable from marijuana. The amicus brief argues that in light of the nationwide legalization of hemp and changes in the Florida laws relating to medical marijuana (including a Florida constitutional amendment), and because legal hemp and illegal cannabis smell exactly the same, the odor of cannabis alone no longer provides a reasonable and well-founded suspicion of criminal activity to authorize an investigatory detention (or the search of a car). The brief argues that the smell of marijuana alone is no longer plainly indicative of the presence of contraband nor plainly incriminating, as it was when hemp and marijuana were illegal and the distinctive smell of marijuana was sufficient to suspect unlawful possession. Today, a law enforcement officer who smells marijuana cannot know whether the smell is legal hemp, legal medical marijuana, or illegal marijuana, and the smell can be consistent with innocent and lawful conduct. Therefore, the amicus brief argues that the Court should recede from the plain-smell doctrine and adopt a totality of circumstances test, which has been applied for decades in other law enforcement contexts. To read Jackie’s amicus brief, click here. To read the other amici briefs, the en banc order seeking additional briefing, and the merits briefs of the parties, click here. Check back for an update in a few months, which we will post when the en banc Court renders its opinion.

Click here to download Jackie’s amicus brief.  Listed below are the other relative pleadings and briefs:


  1. Initial Panel Decision
  2. En Banc Supplemental Briefing Order
  3. Amicus Brief – FACDL Miami Chapter
  4. Amicus Brief – ACLU & SPLC
  5. Amicus Brief – Florida Public Defender Association
  6. Amicus Brief – Florida Prosecuting Attorneys Association
  7. Amicus Brief – Florida Sheriffs Association
  8. Merits Briefs – Defendant’s Initial Brief
  9. Merits Briefs – State’s Answer Brief
  10. Merits Briefs – Defendant’s Reply Brief
  11. Merits Supplemental Briefs – Defendant’s Supplemental Brief
  12. Merits Supplemental Briefs – State’s Supplemental Brief