Tampa Drug Crimes Defense – If you are facing charges for drug conspiracy or possession with intent to distribute, the most critical element of the government’s case is often the one hardest to prove: Knowledge. In the federal system, and specifically within the jurisdiction of the 11th Circuit (which covers Florida), simply being near drugs or even transporting them is not enough to prove a crime.

The Landmark Case: United States v. Terry Pierre Louis – Tampa Drug Crimes Defense

The case of United States v. Louis, 861 F.3d 1330 (11th Cir. 2017), remains one of the most significant victories for the defense regarding the “Knowledge” element in drug trafficking cases. It serves as a shield in Tampa Drug Crimes Defense for individuals who are present during a crime but have no specific knowledge that controlled substances are involved.

Frequently Asked Tampa Drug Crimes Defense Questions: Drug Conspiracy and the Element of Knowledge

Understanding the Burden of Proof in a Tampa Drug Crimes Defense: Knowledge Requirement

The following table illustrates the gap between what the government suspects and what the government must prove in a Tampa drug trafficking case based on the Louis decision.

Federal vs. Florida State Drug Laws

Whether your case is in the Middle District of Florida (Federal) or a Hillsborough County courtroom (State), the “Knowledge” element is a cornerstone of your defense.

• Federal Statutes: Most federal drug trafficking cases fall under 21 U.S.C. § 846 (Conspiracy) and 21 U.S.C. § 841 (Distribution).
• Florida Statutes: State charges often involve Florida Statute 893.135, which carries heavy mandatory minimum sentences for trafficking.

For more information on the specific penalties associated with these charges, you can visit the Official Website of the Florida Legislature.

The Role of a Board Certified Criminal Trial Lawyer

When the government relies on theories like “entrustment” or “guilt by association,” you need an attorney who understands how to apply appellate decisions like United States v. Louis to your specific facts. I have spent my career dismantling the government’s assumptions and holding them to the highest standard of proof.

If you have been charged based on “mere presence” or find yourself accused of a conspiracy you didn’t know existed, you need a defense built on local experience and national precedent.

• Learn more about my experience: W.F. “Casey” Ebsary, Jr. Bio Page
• Schedule a confidential consultation: Contact Our Tampa Office

Why the “Louis” Drug Case Matters to You

The Louis decision is a reminder that the system is designed to protect the innocent from being swept up in broad law enforcement stings. In that case, Customs and Border Protection had watched a vessel for four days, found nothing, and eventually arrested a man who was simply doing his job moving boxes for his employer.

Because the government could not provide a single witness to say they told Louis there were drugs in those boxes, and because there was no “wiretap” evidence showing he discussed cocaine, his conviction could not stand. We use these same strategies to protect our clients today.

Professional Legal Assistance in Tampa

If you are under investigation by the DEA, FBI, or local Hillsborough County Sheriff’s Office, do not wait for the government to build their case. Reach out to a lawyer who knows how to fight drug conspiracy charges.

Law Office of W.F. “Casey” Ebsary, Jr.

2102 W Cleveland St

Tampa, Florida 33606

Call: (813) 222-2220

Full Text of the Opinion: United States v. Terry Pierre Louis

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TERRY PIERRE LOUIS, Defendant-Appellant.

No. 16-11349 | July 10, 2017

United States Court of Appeals, Eleventh Circuit.

Appeal from the United States District Court for the Southern District of Florida. Before TJOFLAT and WILSON, Circuit Judges, and ROBRENO, District Judge.

WILSON, Circuit Judge:

Terry Pierre Louis appeals his convictions for conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). Louis argues that the evidence was insufficient to support his convictions because the government failed to prove he knew the boxes placed in his car contained a controlled substance. After thorough review, and with the benefit of oral argument, we agree. Because a reasonable jury could not find that Louis had the requisite knowledge based on the evidence presented at trial, we reverse his convictions.

I. BACKGROUND

In April 2015, Customs and Border Protection (CBP) received a tip that the M/V Sea Hauler, a coastal freighter that exports goods from Miami to Haiti, was returning to Miami carrying narcotics. When the ship arrived, CBP agents boarded and searched it for four days but found no narcotics. During this time, the crew remained on the ship. Louis, an employee of the ship’s owner, helped provide food to the confined crew.

Following the unsuccessful search, agents set up surveillance. An agent saw a deck watchman carry two large cardboard boxes from inside the ship. Later, a forklift moved the boxes off the freighter. The ship’s owner then directed a car—driven by Louis—to park near the boxes. The owner opened the passenger rear door, and two men loaded the boxes inside. Louis began driving slowly toward the front of the shipyard while the owner walked alongside.

As the car exited the shipyard, unmarked law enforcement vehicles moved in with sirens and lights. Louis stopped the car, jumped out, and fled. He was quickly apprehended. Inside the car, the boxes were found to contain 111 bricks of cocaine.

II. DISCUSSION

To support a conviction for conspiracy to distribute or possession with intent to distribute, the government must prove the defendant knew the substance involved was a controlled substance. United States v. Ohayon, 483 F.3d 1281, 1293 (11th Cir. 2007).

The government argues that Louis’s flight and his presence during the loading of the boxes prove his knowledge. We disagree. While flight and presence are evidence of “consciousness of guilt,” they do not prove that a defendant knew he was involved in a drug crime as opposed to some other illegal activity, such as transporting stolen goods or un-manifested cargo.

We also reject the government’s “entrustment” theory. The government argued that because the cocaine was worth millions of dollars, a “prudent smuggler” would not entrust it to an innocent driver. However, the evidence showed Louis was in the car with the boxes for only a very short time and was never left alone with them. Under these facts, the inference of knowledge from the value of the drugs is too speculative to support a conviction beyond a reasonable doubt.

Because the government offered no evidence that Louis saw the contents of the boxes, heard any conversations about drugs, or was told what he was transporting, the evidence is insufficient.

REVERSED.

Visit our About Page for more information on our firm’s history of defending high-stakes drug cases.

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.

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:

1. 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.
2. 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.

The Odor of Cannabis in Florida: A Legal Perspective

Florida court upholds probable cause based on the odor of marijuana for vehicle searches despite hemp and marijuana legalization. Legal insights for defendants.

We concede, without affirmatively holding, that such a circumstance (such as where the individual has a lawful prescription or that the substance is hemp) might provide an affirmative defense to a charge of a criminal offense, but it would not prevent the search.

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Introduction

In recent years, the odor of cannabis has become more common and the debate surrounding the legality and implications of marijuana and hemp in Florida has taken center stage. With the legalization of hemp and, under certain circumstances, marijuana, it has sparked discussions about the role of the odor of marijuana in law enforcement. The Second District Court of Appeal in Florida recently tackled this issue in the case of the Defendant and his defense attorney, challenging a guilty plea for possession of methamphetamine. This article delves into the court’s decision and the implications it has on the odor of cannabis in Florida.

Background

The Defendant argued that the search of the vehicle was solely based on the odor of marijuana, contending that due to the legalization of marijuana and hemp in Florida, the odor of marijuana could no longer serve as probable cause for a vehicle search. The Defendant raised a compelling argument, pointing to the difficulty of distinguishing the scent of marijuana from that of hemp, which is legal. The Court’s decision and reasoning provide insight into the legal landscape surrounding this issue.

Court’s Decision

The Court, in its decision, rejected the Defendant’s argument and upheld their judgment and sentence. They disagreed with the Twentieth Judicial Circuit Court’s decision in State v. Nord, which held that the odor of marijuana alone couldn’t establish probable cause for a search during a traffic stop. Instead, they adopted the Ninth Judicial Circuit’s opinion in State v. Ruise, which concluded that an officer smelling the odor of marijuana during a traffic stop could justify a warrantless search of the vehicle, even if the odor was indistinguishable from that of legal hemp.

The Court emphasized that the odor of marijuana provided an officer with probable cause to believe that it indicated the illegal use of marijuana. They argued that the circumstances of the case, involving reckless driving and erratic behavior, further supported the officer’s decision to detain the Defendant and search the vehicle.

Future Implications

The Court’s decision signifies that, even if marijuana is legalized for recreational use, using it while driving could still lead to charges of driving while intoxicated. The smell of burning marijuana remains valid probable cause for a vehicle search, which aligns with a “practical and common sensical standard” of probable cause.

While recognizing that there might be legitimate explanations for the presence of the odor of fresh marijuana in a vehicle, such as a lawful prescription or the use of hemp, the Court asserted that such explanations would serve as an affirmative defense rather than a deterrent for a search.

Conclusion

In conclusion, the recent decision by the Second District Court of Appeal in Florida reaffirms that the odor of marijuana continues to be a valid basis for probable cause to search a vehicle, regardless of the legalization of hemp and certain circumstances surrounding marijuana. This decision provides clarity on an issue that has been at the forefront of legal discussions in Florida and maintains the balance between personal freedom and public safety.

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Complete Odor of Cannabis Opinion of the Florida Court

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

EVANS JOSHUA OWENS, ) ) Appellant, ) )

v. ) Case No. 2D20-537 ) STATE OF FLORIDA, ) )

Appellee. ) )

Opinion filed March 31, 2021.

Appeal from the Circuit Court for Hillsborough County; Kimberly K. Fernandez, Judge.

Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Evans Joshua Owens challenges his judgment and sentence following his guilty plea to the offense of possession of methamphetamine. He argues that the trial court erred in denying his preserved, dispositive motion to suppress. Owens argues, in

pertinent part, that the search of his vehicle was based solely on the odor of marijuana and that because possession of marijuana in some instances, and hemp in all instances, has been legalized in Florida, the odor of marijuana can no longer serve as the basis for probable cause to search a vehicle because the odor of marijuana cannot be distinguished from that of hemp. We reject this argument and affirm Owens’ judgment and sentence.

We are aware of the decision of the Twentieth Judicial Circuit Court of Florida that held that the smell of marijuana in connection with a traffic stop cannot constitute the sole basis supporting probable cause for a search. See State v. Nord, 28 Fla. L. Weekly Supp. 511 (Fla. 20th Cir. Ct. Aug. 8, 2020). With all due respect to the capable and experienced circuit judge who authored that opinion, we cannot agree. Instead, we hold that an officer smelling the odor of marijuana has probable cause to believe that the odor indicates the illegal use of marijuana. Accordingly, to the extent that it conflicts with this decision, we disapprove of Nord and adopt the opinion of the Ninth Judicial Circuit of Florida in State v. Ruise, 28 Fla. L. Weekly Supp. 122 (Fla. 9th Cir. Ct. Mar. 20, 2020) (holding that an officer who smelled the odor of marijuana during a traffic stop had probable cause for a warrantless search of the vehicle, even though the odor of cannabis was found to be indistinguishable from the odor of now legal hemp).

We also note that, in this case, the officer was responding to a complaint of reckless and erratic driving; and Owens’ odd and erratic responses to the officer’s attempts to communicate with him, coupled with the smell, caused the officer to reasonably conclude that Owens should not be “behind the wheel of a vehicle.” Thus, the circumstances supported the officer’s conclusion that he had probable cause to

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detain Owens and to search his vehicle.1 Finally, we note that even if marijuana was legalized for recreational use, such use while driving would still support the offense of driving while intoxicated; thus, regardless of whether marijuana becomes decriminalized for recreational use, the smell of the burning substance will continue to provide probable cause for a search of a vehicle. See Johnson v. State, 275 So. 3d 800, 802 (Fla. 1st DCA 2019) (“[E]ven if smoking marijuana were legal altogether, the officers would have probable cause based on the fact that Johnson was operating a car.” (citing § 316.193(1)(a), Fla. Stat. (2018))).2 “The probable cause standard, after all, is a ‘practical and common sensical standard.’ It is enough if there is the ‘the kind of fair probability’ on which ‘reasonable and prudent people, not legal technicians, act.’ ” Id. (quoting Florida v. Harris, 568 U.S. 237, 244 (2013)).

We recognize that there may be a circumstance where an occupant of a vehicle may have a legitimate explanation for the presence of the smell of fresh (not burning or burnt) marijuana in the vehicle, such as where the individual has a lawful prescription for it, or that the substance is, in fact, hemp. But even the current version of section 381.986, which permits qualified physicians to prescribe the smoking of marijuana as “an appropriate route of administration for a qualified patient,” see § 381.986(4)(c),3 continues to prohibit the use of smoked marijuana in vehicles, see 1 As Owens exited the vehicle, the officer saw a plastic bag in plain sight containing a crystal-like substance that was later proven to be methamphetamine. 2

We are confident that in the event marijuana becomes legal for recreational use in Florida, the legislature will amend the statutes pertaining to driving while intoxicated accordingly.

3As amended by ch. 2019-1, Laws of Florida.

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§ 381.986(1)(j)5 (providing that “medical use” of marijuana does not include use of marijuana on any form of public transportation; in any public place; or on a school bus, vehicle, aircraft, or motorboat “except for low-THC cannabis not in a form for smoking” (emphasis added)). Cf. Johnson, 275 So. 3d at 802 (holding that even if the driver was a medical marijuana user, this would not defeat probable cause).

We concede, without affirmatively holding, that such a circumstance (such as where the individual has a lawful prescription or that the substance is hemp) might provide an affirmative defense to a charge of a criminal offense, but it would not prevent the search. Nevertheless, we can think of no circumstance where an affirmative defense might lie where the impetus for the search arose from the smell of burnt marijuana in a vehicle.

Accordingly, we conclude that the recent legalization of hemp, and under certain circumstances marijuana, does not serve as a sea change undoing existing precedent, and we hold that regardless of whether the smell of marijuana is indistinguishable from that of hemp, the smell of marijuana emanating from a vehicle continues to provide probable cause for a warrantless search of the vehicle. See, e.g., State v. Brookins, 290 So. 3d 1100, 1104 (Fla. 2d DCA 2020) (“Our supreme court has observed that the odor of burnt marijuana emanating from a vehicle—like we have here—provides probable cause to search each of the vehicle’s occupants.” (citing State v. Betz, 815 So. 2d 627, 633 (Fla. 2002))); accord Johnson, 275 So. 3d at 802.

Affirmed.

SLEET and SMITH, JJ., Concur.

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