Florida’s Hemp law & Searches based on Odor… Is that marijuana that I smell…or hemp?
On July 1, 2019, Senate Bill 1020 a/k/a the “Hemp” Bill became law. Low THC hemp (.3% or less) is not cannabis and is not illegal.
Hemp and marijuana are both derived from the Cannabis Sativa plant. Marijuana and Hemp look alike, feel alike and smell alike. Both can be smoked.
This impacts law enforcement’s probable cause to search based upon the odor of marijuana. Now that hemp is legal, if an officer makes a stop and searches a vehicle based upon the odor of marijuana, the odor may actually be hemp and thus not illegal.
Law Enforcement agencies and State Attorneys are amending their policies to adjust for the change in Florida law.
The Florida Highway Patrol directed troopers to follow an “odor plus standard” to establish probable cause to search. A memorandum issued on July 3, 2019 directs Troopers to continue to conduct cannabis investigations, but not to rely solely on odor for conducting a search. The memo gives the following example: While conducting a traffic stop, if you detect the odor of cannabis emanating from the vehicle, Prior to searching, you should ask the subject, "Do you have any marijuana or hemp in the vehicle?" If the subject answers "No ", then you have reached the threshold to detain and search. If the subject answers .. Yes", then you need to determine if it is marijuana or hemp. If the subject advises it is marijuana, then you must determine if the marijuana is legally obtained (medical marijuana). If the subject has illegal marijuana. Then you may now detain and search.”
The memo goes on to state: The "odor plus standard" requires troopers to obtain circumstantial evidence beyond the mere scent of marijuana (burnt or fresh) in order to establish probable cause for a search of a vehicle. Troopers shall articulate in their uniform crime report narratives / arrest reports all specific observations. The following are some examples of "odor plus standards" that may be used to determine probable cause:
• Admission of possession of a controlled substance during initial contact OR denial of possession of hemp
• Visual observation -plain view / plain feel of an illegal substance
• Any other illegal activity / conduct
• Conflicting or nonsensical statements by suspect or passenger
• Signs of deceptions, hands shaking, nervousness, avoiding eye contact
• Furtive movements
• Destroying, discarding, or distancing themselves from an object / substance
• Signs of impairment (driving pattern, bloodshot or watery eyes, slurred speech, delayed reaction/responses)
• A large amount of currency and/or currency bundled, rubber banded or packaged in a manner consistent with illegal narcotics activity
• Masking agents
• Drug Paraphernalia (scales, baggies, or other paraphernalia when combined with other factors on list)
• Weapon / firearm
• Criminal record if known prior to stop and subsequent search (applies more to the determination of whether material is hemp or cannabis rather than probable cause to search)
• Information / intelligence regarding illicit activity prior to stop and search
Presumptive Testing and Arrests
Current field test kits do not have the capability of distinguishing between legal hemp v. illegal cannabis. Troopers shall not use a current THC field test kit as sole probable cause for an arrest. The Florida Highway Patrol is in the process of obtaining specific field test kits that have the ability to distinguish between legal hemp and cannabis. Once the new THC field test kit is acquired, it will be able to distinguish between legal hemp and cannabis, and troopers will be able to use that field test kit as a presumptive test. When using the new THC field test kit, troopers shall document that the cannabis was presumptively tested at "l% or greater D-9 THC concentration" in their uniform crime reports / arrest reports, evidence property receipts and other documentation.
Until the new THC test kit is acquired, if a felony amount of cannabis is found, no custodial arrest shall be made until the trooper consults with a Troop Legal Advisor. At this time, no trooper shall make a custodial arrest for a misdemeanor amount of suspected cannabis.
If, based on the trooper's investigation, there is a reasonable belief that the material is illegal cannabis, troopers shall seize the suspected cannabis for further investigation and/or testing. If probable cause is developed that the seized material is cannabis and not hemp, charges will be direct filed with the local State Attorney's Office.”
Other Law Enforcement agencies and State Attorneys are also modifying policies and procedures because of the new Hemp Law.
The State Attorney in Palm Beach county explained in a memo, “We will not be able to prosecute any marijuana or THC oil cases without a test from an accredited lab indicating that the THC content is over .3%,” the memo says. Each law enforcement agency and its legal advisers will need to make decisions on when to seize suspected marijuana or THC oil and when to make an arrest. Until now, the smell of marijuana gave police probable cause to search a vehicle without going to court to get a warrant.
“We will not be able to file charges without a positive result from a 1% test kit, and a commitment from the agency that it will pay for quantitative testing by a private, accredited lab,”
In a memo issued to all law enforcement agencies in Seminole and Brevard counties, State Attorney Phil Archer said that, while out-of-state options to test for THC concentration “may exist,” the cost of sending seized marijuana to labs outside Florida and obtaining expert witnesses to testify in court makes those options “prohibitive in all except the most serious of cases.” “Therefore, based on the evidentiary hurdles and speedy trial constraints we must overcome in prosecuting cannabis cases, the State Attorney’s Office will require a laboratory test result before the filing of any cannabis related charge,”
What does all this mean? Things will be confusing for a while. We will probably see more motions to suppress bad stops, Law Enforcement Agencies and State Attorneys will continue to tweak their “probable cause based upon odor” searches and prosecution policies. We can expect Miranda problems and concerns with citizens’ 5th Amendment right to remain silent as officers and deputies start asking more questions about hemp, marijuana and medical marijuana prescriptions. We will probably see new case law as these issues are fought and litigated.
Sources: Palm Beach Post; Palm Beach County State Attorney Dave Aronberg puts police on notice: Marijuana arrests are going to be tough now that hemp is legal in Florida., author John Pacenti
Florida Highway Patrol Memorandum July 3, 2019 Immediate Impact of the Hemp Law
Orlando Sentinel, Florida’s new hemp law is changing how Seminole, Brevard prosecutors handle marijuana crimes, author Michael Williams