The End of ‘Plain Smell’ Justification: New Cannabis Ruling Alters Probable Cause for DUI-Drug Arrests
A recent, transformative decision from the Second District Court of Appeal, Darrielle Ortiz Williams v. State of Florida, has dramatically shifted the legal landscape for cannabis-related cases in Florida. This ruling, which dismantled the “plain smell doctrine,” is a game-changer for anyone facing a DUI-Drug (DUID) charge based on cannabis in the Tampa Bay area.
The foundation of the court’s decision is that legislative changes have made cannabis legal in multiple forms (medical marijuana, hemp), meaning the odor of cannabis is no longer immediately indicative of criminal activity. As a result, the court held that smell alone cannot provide probable cause to search a vehicle.
For DUID cases, this creates an essential new line of defense. The State’s case against you for DUID is a two-part equation: first, that you possessed the drug, and second, that you were impaired by it. Often, in a cannabis DUID stop, the officer’s initial reason for searching the car and finding the drug was the smell alone. Now, if the initial search for the drug was illegal (based only on smell), the fruit of the poisonous tree doctrine should apply to suppress the drug and any subsequent admissions.
While judges in the case recognized the State’s compelling interest in removing impaired drivers from the road, the majority’s holding makes clear that this safety interest cannot override the fundamental protections of the Fourth Amendment. If you were stopped, searched, and arrested for DUID after the odor of cannabis was detected, your defense strategy must immediately incorporate this new, powerful precedent.
Plain Smell Frequently Asked Questions
Answer: The smell of marijuana, especially when it’s still fresh or recently smoked, is often used as probable cause for law enforcement officers to stop a vehicle or conduct a search. This is because the smell is considered an indication that a crime may have been committed, such as driving under the influence of marijuana or possessing it without a prescription.
Answer: In many cases, the smell of marijuana can serve as probable cause for an officer to initiate a search or an arrest, even in places where marijuana is legalized. However, for a full arrest to be made, officers must often provide more evidence of criminal activity, such as impaired driving or possession of an illegal amount.
Answer: Probable cause refers to a reasonable belief, based on facts or circumstances, that a crime has been or is being committed. The smell of marijuana may be used by law enforcement to establish probable cause, justifying a stop, search, or arrest if they suspect the person is under the influence or in possession of illegal marijuana.
Answer: It’s important to remain calm and respectful. The person should not resist the officer but can politely ask for clarification on the reason for the stop or search. It is also advisable to request a lawyer before answering any questions that could potentially incriminate them.
Answer: Officers may use various signs of impairment, such as erratic driving behavior, physical symptoms (e.g., red eyes, slow reactions), and the presence of marijuana in the vehicle. If the individual is tested for marijuana levels (either through blood, saliva, or other methods), those results could strengthen the case for DUI.
Answer: If someone is wrongfully arrested, they may be able to challenge the arrest in court. A skilled defense attorney can argue that the smell of marijuana alone does not provide sufficient grounds for an arrest, especially if there is no evidence of illegal behavior, such as impairment or possession beyond legal limits.
Answer: The best way to protect oneself is to be aware of the laws regarding marijuana in your area. Avoid consuming marijuana in situations where law enforcement may become involved (e.g., driving). If stopped by police, stay calm and comply with the officer’s instructions. If you believe your rights are being violated, you can ask for legal counsel before providing further information.
Answer: Yes, in many cases, an officer can conduct a vehicle search if they detect the odor of marijuana. However, the scope of the search must be reasonable, and in some instances, if marijuana is legal in that state or if the odor is not accompanied by other criminal activity (e.g., impairment), the search could be deemed unlawful.
The Dual Nature of Cannabis DUID Stops
To understand the impact of Williams on DUID cases, it is critical to distinguish between the two separate legal standards at play during a cannabis-related traffic stop:
- Probable Cause to Search (for Possession): This relates to the officer’s right to search your vehicle for illegal drugs or contraband. This is the standard directly addressed by the Williams ruling. Post-Williams, the smell of cannabis alone is insufficient.
- Probable Cause to Arrest (for Impairment/DUI): This relates to the officer’s belief that you are operating a vehicle while your normal faculties are impaired. This is established through signs of impairment (erratic driving, slurred speech, poor performance on Field Sobriety Exercises, etc.).
Before the Williams ruling, the two were often conflated to the detriment of the driver. An officer would smell cannabis (Probable Cause to Search), conduct a search, find the drug (Possession charge), and then use the subsequent finding of the drug, combined with some observable signs of impairment, to justify the DUI arrest.
The new ruling separates these two inquiries entirely. An officer may have a valid basis for a DUID investigation (e.g., swerving across lane markers), but they no longer have an automatic basis to search the vehicle simply because they smell cannabis. This has enormous consequences for the evidence the State is allowed to use against you.
How the “Poisonous Tree” Doctrine Kills DUID Cases
The most significant legal weapon a DUI defense attorney has in the wake of Williams is the “fruit of the poisonous tree” doctrine, as discussed in the context of the Exclusionary Rule.
In many DUID cases, the evidence is gathered in a specific sequence:
- Phase 1: Traffic Stop: Officer observes a traffic infraction.
- Phase 2: The Smell: Officer detects the odor of cannabis.
- Phase 3: The Illegal Search (The Poisonous Tree): Officer uses the smell as the sole basis for searching the vehicle, claiming probable cause.
- Phase 4: Evidence Found (The Fruit): Officer finds a bag of illegal marijuana, a vaporizer containing THC, or a pipe with illegal residue.
- Phase 5: The DUI Arrest: The officer uses the physical evidence (the drug) plus their observations of impairment to complete the DUID probable cause affidavit.
If the officer cannot articulate any factors beyond the smell to justify the Phase 3 search (which is now illegal), the search is deemed unconstitutional. When that happens, the physical drug evidence found in Phase 4 is suppressed. Without the physical evidence of the drug, the State’s ability to prove the “D” for Drug in the DUID charge is severely compromised, often leading to a dismissal or a significant reduction in charges.
The ruling forces police to conduct a thorough impairment investigation first (Field Sobriety Exercises, DRE consultation) before resorting to a search, especially if the only initial indicator is smell.
Probable Cause Paradox: Analyzing Judge Atkinson’s Concurrence
To fully grasp the depth of the Williams ruling, a DUI defense lawyer must appreciate the concurring opinion by Judge Atkinson, which focuses on the logical flaw of the old rule.
Judge Atkinson argued that the definition of “probable cause” is rooted in the concept that it is more likely than not that a crime has been committed. Given the legalization of hemp (which looks and smells identical to illegal cannabis) and medical marijuana, when an officer smells cannabis, the evidence is at “equipoise”—meaning the possibility that the source is legal is equal to the possibility that the source is illegal.
In this state of equipoise, the officer cannot rationally conclude that it is “more likely than not” that they will find illegal contraband. Therefore, the probable cause standard cannot be met.
This legal logic is devastating to the old doctrine. It means the issue isn’t just about technical legal changes; it’s about the fundamental impossibility of establishing probable cause when the evidence (the smell) points equally to a legal and an illegal conclusion. This argument provides a powerful tool for your DUI defense attorney to argue that the search was inherently unreasonable and unconstitutional.
Building a DUID Defense in the Post-Williams Era
The Williams ruling adds a crucial layer to the defense strategy for DUID cases. A comprehensive DUI defense now involves two major simultaneous challenges:
Challenge 1: The Search and Seizure (The Fourth Amendment)
This is the Williams Challenge. Your lawyer will aggressively file a Motion to Suppress, focusing exclusively on the circumstances leading up to the discovery of the drug. We will demand proof of all “additional factors” (beyond the smell) and use video evidence to dismantle the officer’s claims of erratic driving or furtive movements. If the search is suppressed, the DUID case is severely weakened or dismissed.
Challenge 2: The Impairment Evidence (The DUI)
Even if the search is deemed legal, or if the officer had enough evidence of impairment before the search, your lawyer will still challenge the State’s evidence of impairment. This involves:
- Field Sobriety Exercises (FSEs): Challenging the officer’s instructions, the roadside conditions, your pre-existing medical conditions, and the officer’s scoring of your performance.
- Drug Recognition Expert (DRE) Testimony: DRE evidence is often subjective and based on a 12-step protocol. We challenge the DRE’s training, the administration of the tests, and the final opinion on impairment.
- Blood Test: Scrutinizing the chain of custody, lab procedures, and the specific THC levels, arguing that the mere presence of THC does not prove impairment at the time of driving.
In short, the Williams ruling provides a vital, pre-trial method to eliminate evidence, while the traditional DUID defense challenges the core element of the crime: whether you were truly impaired while driving.
Public Safety vs. Constitutional Rights: The Dissenting View
It is important to acknowledge the dissenting views in the Williams case, particularly those that focused on the impact on public safety. The dissent argued that requiring additional factors beyond the smell of cannabis places an undue burden on police officers who are trying to prevent impaired driving.
Judge Villanti, for example, noted the State’s compelling interest in ensuring drivers are not operating vehicles while impaired by cannabis. The fear expressed was that by eliminating the “plain smell” tool, the court was handcuffing officers and making it harder for them to remove impaired drivers from the road.
While this public safety concern is understandable, the majority opinion correctly held that the desire for efficient law enforcement cannot override the clear command of the Fourth Amendment. The Constitution mandates probable cause; it does not promise law enforcement an easy path to a search. The decision clarifies that if public safety concerns are truly warranted, the officer is free to investigate impairment via standard FSEs and observation—they just cannot conduct an invasive search without more evidence than smell.
Conclusion: Your Right to an Unimpaired Defense
The Williams v. State ruling is a profound victory for Fourth Amendment protections that directly impacts how DUI-Drug cases involving cannabis will be defended in Tampa and across the Second District. The automatic link between the odor of cannabis and a vehicle search has been constitutionally severed.
If you are facing a DUID charge, the key question your lawyer must answer is: Did the police have a legal basis to find the drug evidence used against me?
At DUI2Go.com, we are ready to apply the Williams Challenge immediately to your case. We specialize in DUID defense, combining an aggressive challenge to the legality of the search with a rigorous defense against the State’s claims of impairment. Don’t let your case be built on the “fruit of a poisonous tree.”
Contact us today for a confidential consultation. We will use this new, powerful legal precedent to ensure your rights are upheld and fight for the best possible resolution, including the dismissal of charges.