Falling Through the Ceiling: The “I’m Just a Burglar” Defense

By: John Guidry

As you know, I’ve been practicing criminal defense here in Orlando for over thirty years. The time has flown by, and I’ve never once stepped over to the dark side—I’ve been defense-only from day one. In that time, I’ve heard it all. I’ve heard stories that are stranger than fiction and stories so “not-so-true” that even we defense attorneys have to pull over for a good laugh.

This next case, Basulto-Rodriguez v. State, 95 So. 3d 403 (Fla. 3d DCA 2012), takes the cake. It’s the “typical script” of a grow house raid, but with a twist that I haven’t heard before or since.

Found in a home with more plants than people? The state will try to pin every leaf on you. Call John Guidry today at (407) 423-1117 to fight back.

The Raid: A “Smashing” Success

This story began like most hydroponic grow house cases. The police got a tip, did some surveillance, and once they had their “suspicious facts” lined up, they burst through the door with a warrant. Inside, they found a literal forest: at least 250 marijuana plants growing in plain view.

As the cops were tossing the place, they heard rustling in the attic. When the “residents” refused to come down, gravity—and a flimsy ceiling—did the work for the police. Two men literally fell through the ceiling and into the waiting arms of the law.

The Defense: “I’m a Thief, Not a Farmer!”

Basulto-Rodriguez’s theory of defense was, frankly, “insane.” He admitted he was in the house illegally, but claimed he was only there to burglarize the place! He argued that he and his buddy just happened to be mid-burglary when the drug task force coincidentally showed up to raid the grow house.

To his credit, there was actually zero evidence linking him to the operation:

• He didn’t own the house.
• He didn’t own the car out front.
• He had no grow equipment in his pockets.
• The Problem: The marijuana plants were in plain view.

The 2025 Reality: Plain View and the Death of “Plain Smell”

In 2025, the law has moved in ways that would have made Basulto-Rodriguez’s case even more interesting.

1. The Death of the “Plain Smell” Doctrine

On October 1, 2025, the Florida Second District Court of Appeals issued a landmark ruling in Williams v. State (No.¹ 2D2023-2200). The court ruled that the odor of marijuana, standing alone, is no longer enough to establish probable cause for a search.² Because legal hemp and medical marijuana smell identical to the “illegal” stuff, a cop can’t just follow their nose into your house anymore. If the tip in the Basulto case was just “it smells like weed,” a good lawyer in 2025 might have gotten the entire warrant tossed.

2. The Trafficking Tiers

In Florida, “Trafficking in Cannabis” isn’t about selling—it’s about weight and numbers.

Note: In Basulto’s case, he was lucky the count was only 250 plants, which kept him below the trafficking threshold unless the weight exceeded 25 lbs.

John’s Takeaways

• Constructive Possession is the Key: If you don’t own the house, the State must prove you had “dominion and control” over the drugs.³ But if the drugs are in plain view, the court will almost always infer that you knew they were there.
• Admitting to a Lesser Crime: Sometimes, admitting to a burglary to avoid a 15-year trafficking sentence seems like a good “hail mary.” It didn’t work for Basulto, but it shows the desperation folks feel when facing mandatory minimums.
• Medical Marijuana Revocation: As of late 2025, if you are a medical marijuana patient and get charged with trafficking, the state will immediately suspend your MMJ card until the case is resolved.
• Failure of Proof: If the cops can’t prove you were more than a “guest” or a “visitor” (or a very unlucky burglar), we can still push for a dismissal based on a lack of evidence.

The justice system is harsh, and it is “sad but true” that being in the wrong attic at the wrong time can cost you years of your life. I’ve been defending Central Florida against “witch hunt” drug raids since 1993. Whether you’re in Orange, Seminole, or Osceola County, if you’re caught in a “plain view” nightmare, you need a lawyer who knows how to spot the cracks in the State’s case.

Caught in a grow house raid? 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.