On July 1, 2019, the state of Florida legalized hemp, and the new law is impacting marijuana arrests and prosecutions.
Overview of the New Hemp Law and the Challenges It Presents to Prosecutors
Hemp, cannabidiol (CBD), and other derivatives that contain .3% or less of tetrahydrocannabinol (THC)—the main psychoactive ingredient of cannabis—are now lawful substances in Florida. In fact, Florida’s new hemp law is impacting marijuana arrests and prosecutions.
For state prosecutors, the change has introduced significant challenges that, although not insurmountable, have forced reconsideration of their approach to cannabis-related legal issues.
Distinguishing Hemp From Marijuana
Hemp products and marijuana products look and smell the same. With the two substances being almost indistinguishable from one another by sight or smell alone, police officers are now blocked from their traditional routes for establishing probable cause. Even drug-sniffing K-9s, which have been trained to detect any amount of THC, now prove ineffective with regard to identifying an illegal substance in the cannabis realm.
Interfering With Lawful Searches
As such, while marijuana is still illegal in the state of Florida under § 893.13, the inability to distinguish the substance from legal hemp products taints previously acceptable prompts for probable cause, thereby blocking a good number of searches and seizures. This strong similarity makes laws against marijuana possession extremely challenging to enforce.
For example, it used to be that if a police officer were to stop a motorist and see and/or smell what seemed to be marijuana in the car, the officer would have probable cause to search the vehicle. Any item found during this “sniff and search” would be a valid cause for arrest and could be used as evidence against the motorist.
The legalization of hemp, however, combined with the inability to distinguish hemp (legal) from marijuana (illegal) based on sight or smell, means that the same officer in the above situation would now not have probable cause to search the vehicle based on seeing or smelling what they believe to be marijuana. An arrest, therefore, cannot be made with this observational evidence alone, nor can any item—a gun, for example—found in a “sniff and search” be used as evidence against the motorist.
An Exception to Searching Constraints: Odor Plus Standard
According to a memo sent to media outlets, such as the Orlando Sentinel, the Florida Highway Patrol has notified its troopers that they are to follow an “odor plus standard” to establish probable cause to search. The only instances in which a law enforcement officer may conduct an “odor-inspired” search in a traffic stop is if:
- The officer asks the motorist whether they have hemp or marijuana in the vehicle, and the motorist says they do
- The officer asks the motorist to identify whether the substance they smell is hemp or marijuana, and the suspect identifies that the substance is marijuana
- The officer ascertains that the substance is not legally obtained marijuana (like medical marijuana)
Some State Attorneys Will Not Be Prosecuting Marijuana Misdemeanors
The State Attorney for the 2nd Judicial Circuit of Florida, Jack Campbell, penned a letter to “law enforcement partners,” advising them that, given the challenges presented by the new hemp law, his office will no longer be charging people with possession of cannabis unless the suspected offenders confess that the substance in their possession is marijuana, not hemp, or a lab can test the substance in question in a manner that meets the state’s evidentiary standards.
Campbell also conveyed that his office will no longer approve search warrants “or another legal process” that stem from a traditional cause, in which a police officer or their K-9 dogs determined that a substance could be marijuana.
The advisory concludes with Campbell cautioning law enforcement to consider these changes when making arrests. Our team is waiting to see if the Pinellas State Attorney will also make a decision about whether to charge people with possession or not.
What This Means for Floridians
The new hemp law has turned a lot of legal and law enforcement policies and procedures on their heads. Every jurisdiction is handling the new law in their own way, with regard to what constitutes a lawful search. We can expect a period of chaos, followed by gradual adjustment to surely follow.
Lawyers are already reaching out to prosecutors to challenge bad stops or unlawful searches for arrests made after the July 1 legalization of hemp.
If you have questions regarding your marijuana or hemp-related arrest and/or conviction, call Goldman Wetzel at (727) 828-3900.