August 1, 2019
Hemp is legal in Florida as of July 1. Because of the plant’s close relationship to marijuana, law enforcement agencies and prosecutors throughout Florida are declining to arrest or prosecute marijuana possession. Gainesville is the latest area to formally decline marijuana cases.
The only practical way to distinguish legal hemp from illicit marijuana is through testing to determine the level of THC. Because such testing equipment is difficult to obtain, and not necessarily accepted by courts, prosecutors believe they cannot obtain convictions. Without that confidence, there is no point in filing charges or even arresting a possible offender.
A secondary and probably unanticipated effect of hemp legalization is that a time-worn law enforcement tool for obtaining evidence may no longer be valid. For years, courts have permitted searches based on the odor of cannabis. Searches based on that odor sometimes lead to stolen credit cards, firearms, or other drugs. Now, because that odor could well be hemp, officers are being told they can use smell as a basis for a warrantless search only if there is another indicator of illegal activity present. This change has the potential to tie an officer’s hands when there is a strong suspicion of a crime but nothing in particular to point to.
Not every agency or jurisdiction has adopted these new policies, and the courts eventually will have to sort out the requirements under the changing law. But for now, people arrested after July 1 may have new avenues of defense.
The criminal defense lawyers at Turner O’Connor Kozlowski, P.L. can help if you have been arrested for a marijuana charge or a different crime that involved a search based on marijuana odor.
