Plain Smell – ‘Totality of the Circumstances’ is Your Best Defense Against Unlawful Search and Seizure

The Total Picture: Why the ‘Totality of the Circumstances’ is Your Best Defense Against Unlawful Search and Seizure

In criminal defense, virtually every case hinges on the Fourth Amendment and whether law enforcement overstepped its bounds in gathering evidence against you. The constitutional test for justifying a search is a robust one: the totality of the circumstances. This means that courts must look at the “whole picture” of the facts leading to a search and seizure, avoiding reliance on any single, isolated fact.

A recent, critically important en banc decision from Florida’s Second District Court of Appeal—Darrielle Ortiz Williams v. State of Florida—affirms this commitment to the totality-of-the-circumstances standard by eliminating an outdated exception to the probable cause requirement.

The case involved an appeal of a probation revocation following a traffic stop where the officers based their entire search only on the smell of cannabis. While the court ultimately affirmed Mr. Williams’s revocation (due to a complex legal doctrine protecting officers who reasonably relied on the old law), the court’s core holding marks a seismic shift in Florida Fourth Amendment jurisprudence: The plain smell doctrine, standing alone, is dead.

The court emphasized that the US Supreme Court has “consistently eschewed bright-line rules” in favor of a fact-specific, reasonable inquiry. Because the odor of cannabis no longer means an illegal substance is immediately apparent—due to the legality of medical marijuana and hemp—the smell alone cannot justify a search. This ruling reinforces the idea that your freedom depends not on a simple “litmus-paper test” but on a thorough review of all the facts available to the officer at the time of the stop. If the totality of those circumstances doesn’t meet the probable cause standard, the evidence must be suppressed.

The Cornerstone of Freedom: The Fourth Amendment

The Fourth Amendment to the United States Constitution is arguably the most vital shield citizens possess against government overreach. It establishes the foundational right: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” The Amendment does not prohibit all searches and seizures, only unreasonable ones, which is where the requirement for probable cause comes into play. The recent legal debate surrounding the smell of cannabis highlights the fragility of this right when courts allow “bright-line” rules to replace the robust, comprehensive inquiry mandated by the Fourth Amendment.

A “Traditional Contextual Approach”: The Totality of the Circumstances

The governing standard for determining probable cause—the benchmark against which every warrantless search must be measured—is the totality of the circumstances. This standard, reaffirmed by the U.S. Supreme Court in landmark cases, actively rejects the imposition of rigid, overly technical, or “per se” rules. The whole point of the totality of the circumstances test is to encourage a magistrate (or a police officer in the field) to look at the “whole picture”—to consider all the available objective facts and inferences before concluding that a crime is likely being committed. The Williams court, in striking down the “plain smell” doctrine, directly and forcefully aligned itself with this higher constitutional standard.

The Failure of the Bright-Line Rule (Plain Smell)

For decades, the “plain smell” doctrine regarding cannabis operated as an almost perfect example of a dangerous and constitutionally deficient bright-line rule. The doctrine was justifiable only in a legal environment where all forms of cannabis were illegal contraband. With the legalization of industrial hemp (which is visually and olfactorily indistinguishable from illegal cannabis) and legally prescribed medical marijuana, the odor of cannabis became ambiguous. The Williams court recognized this constitutional erosion, ruling that because the odor no longer means the substance is “immediately apparent” as contraband, the per se rule had to be eliminated.

The New Analysis in Practice: Articulating Multiple, Objective Facts

The Williams ruling fundamentally changes the legal landscape for all criminal arrests stemming from vehicle searches in Tampa. Law enforcement officers can no longer rely on a simple statement of “I smelled cannabis.” They must now articulate multiple, objective facts—independent of the odor—that, when aggregated, meet the constitutional threshold for probable cause. The odor of cannabis is now treated similarly to other substances that have both legal and illegal uses, demanding a broader inquiry.

The Exclusionary Rule and Precedent (The Davis Exception)

The Exclusionary Rule holds that any evidence obtained as a result of an illegal search (a search that violated the Fourth Amendment) must be excluded, or suppressed, from being used against the defendant at trial. This is often referred to as the “Fruit of the Poisonous Tree” doctrine. It is important to note that the court affirmed Mr. Williams’s appeal due to the Davis Exception, meaning the ruling is prospective and applies only to all searches conducted on or after the date the opinion was issued: October 1, 2025.

Your Defense Strategy: Dissecting the Totality of the Circumstances

The totality of the circumstances standard is the criminal defense attorney’s greatest weapon. An experienced attorney will immediately scrutinize the arrest by challenging the officer’s “Additional Factors” and using Video Evidence Analysis to prove that when all the facts are viewed, they fail to establish a fair probability of crime, thereby invalidating the entire search and seizure. The immediate need for defense attorneys is to file a Motion to Suppress Evidence in all applicable post-Williams cases.

Q&A Section: Applying the New Totality of the Circumstances Standard

Q1: If the police smell cannabis after the Williams ruling (October 1, 2025), is the search always illegal?

A: No. The smell of cannabis is still a relevant factor that law enforcement can consider as part of their investigation. The search is only illegal if the odor of cannabis was the sole factor used to establish probable cause. If the officer can articulate sufficient additional evidence—such as erratic driving, observed illegal drug paraphernalia, or admission of possessing illegal contraband—then the totality of those circumstances will likely justify the search.

Q2: What is the core reason the court struck down the “plain smell” doctrine?

A: The court recognized that legislative changes legalized certain forms of cannabis, specifically medical marijuana and industrial hemp. Since legal and illegal forms smell the same, the odor alone is no longer an “unambiguous signal” of criminal activity. This ambiguity means the smell fails to meet the legal standard of probable cause when considered in isolation.

Q3: What exactly is “probable cause” in a legal context?

A: Probable cause is the constitutional threshold for a search or arrest. It is defined as a fair probability that contraband or evidence of a crime will be found in a particular place. Crucially, it requires more evidence than a mere hunch or suspicion, but less evidence than the proof needed to convict a person at trial.

Q4: How does the “totality of the circumstances” standard differ from the “bright-line” rule?

A: The “bright-line” rule (like “plain smell”) was a shortcut that allowed one single factor to automatically establish probable cause. The “totality of the circumstances” standard, however, requires the court to look at the “whole picture,” considering every single fact the officer knew to make a practical, common-sense judgment. It prevents law enforcement from relying on any one factor too heavily.

Q5: What are examples of the “additional factors” officers now need to justify a search?

A: Beyond the odor, officers must articulate objective facts such as observing the driver making furtive movements (attempts to hide something), exhibiting erratic driving that suggests impairment, or finding paraphernalia clearly associated with illegal drug use. Simply smelling cannabis is now just the starting point, not the conclusion, of the probable cause analysis.

Q6: Does this new ruling help me if my cannabis-related arrest was before October 1, 2025?

A: Unfortunately, likely not. The court applied the Davis Exception, which protects police officers who were reasonably relying on the old, binding law at the time of your arrest. The Williams ruling is prospective and only creates grounds for challenging searches that occurred on or after the ruling date of October 1, 2025.

Q7: What is the “Exclusionary Rule,” and why is it important to this ruling?

A: The Exclusionary Rule is the enforcement mechanism of the Fourth Amendment. It dictates that any evidence obtained as a result of an illegal or unconstitutional search must be excluded from use in court. This rule is crucial because if the search was illegal under the new Williams standard, the evidence (the drugs) must be suppressed, often leading to the dismissal of the case.

Q8: What is a “Motion to Suppress Evidence,” and when should it be filed?

A: A Motion to Suppress is a formal request to the court asking the judge to exclude certain evidence because it was obtained in violation of the defendant’s constitutional rights (like the Fourth Amendment). It must be filed immediately in post-Williams cases where the search was based primarily on the odor of cannabis.

Q9: Does the Williams ruling apply statewide across Florida?

A: Currently, the ruling is binding law only within the jurisdiction of the Second District Court of Appeal (which includes Tampa, Hillsborough, Pinellas, and other counties). However, the Second DCA certified a question of great public importance to the Florida Supreme Court, meaning the Supreme Court may eventually review the case and make the ruling statewide.

Q10: What role does video evidence (like BWC footage) play in this new standard?

A: Video evidence is now paramount. It serves as an impartial check on the officer’s claim of “additional factors.” Your attorney will use BWC footage to confirm or deny if the driver was truly erratic or if the officer genuinely saw “furtive movements,” often dismantling the subjective claims needed to meet the Totality of the Circumstances standard.