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.
“Sniff and search” has long resulted in many arrests for law enforcement in Palm Beach County, where the distinctive smell of marijuana meant a warrantless search of a vehicle.
“It seems every case I have is when they stop a car and it’s the odor of marijuana and they go in and find a gun, they find drugs or they find something,” said West Palm Beach criminal defense lawyer Ronald Chapman.
“How do you disprove that?”
But nearly all sniff-and-search cases just went up in smoke, according to an email from State Attorney Dave Aronberg’s office obtained by The Palm Beach Post.
Now, busting drivers for possession of marijuana leaf or oil is a Herculean task, putting the prospect of any marijuana arrests at all in doubt for the foreseeable future. And all of this is thanks to Florida recent sea change decision to legalize pot’s goody-two-shoes of a sibling: hemp.
To get the state on the forefront of a burgeoning industry, legislators acting with unusual bipartisan support unwittingly took away a much-used tool from law enforcement.
The law went into effect July 1, more than two years after voters approved medical marijuana in Florida.
Aronberg’s office broke the news to law enforcement with an emailed memo from his intake division.
In a sentence in bold font, the memo emphasizes that it is imperative for police departments to determine whether seized cannabis is marijuana or hemp.
“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 percent,” 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 percent test kit, and a commitment from the agency that it will pay for quantitative testing by a private, accredited lab,” Aronberg’s office told police departments.
PBSO, which runs the county’s biggest lab, is reviewing the state attorney’s directive, spokeswoman Teri Barbera said.
Martin County Sheriff William Snyder said his state attorney also notified his department of the devastating effect of the new law.
With the voters approving medical marijuana and lawmakers greenlighting hemp, it’s now nearly impossible to enforce marijuana possession or trafficking laws, Snyder said.
He has told his deputies to stop making marijuana arrests. And a memo from his state attorney, Bruce Colton, says until labs are set up to distinguish between hemp and pot, “officers should not make a probable cause arrest for a cannabis-related offense.”
Hemp vs. pot
While hemp is expected to be a boon to Florida farmers, generating an anticipated billion-dollar industry, the problem for law enforcement is hemp can contain up to 0.3 percent of THC, the psychoactive ingredient in marijuana that makes people high.
Hemp and its derivatives, such as CBD oil and edibles, are used for pain, insomnia, arthritis and a host of health ailments. Hemp can be used industrially, as well. It is one of the strongest natural fibers and historically used in rope. It’s even used as a composite material in automobiles.
“Hemp products look and smell exactly like marijuana products,” whether it be leaf or oil, Aronberg’s email says.
Drug testing kits used in Palm Beach County will ring positive for legal hemp products. PBSO’s lab is not equipped to detect trace amounts of THC.
The drug-sniffing K9s ‒ meticulously and expensively trained to detect the slightest odor of marijuana ‒ won’t be able to distinguish the old-school drug from the new.
“The odor of marijuana ‒ by itself ‒ is no longer probable cause for a search,” the state attorney’s email says. “This is true whether the odor is detected by an officer, or by a dog.”
And the kicker for law enforcement: If officers want to pursue a case, departments must pick up the tab for any private, accredited lab that can detect THC levels, the state attorney memo says.
Colton adds that private labs in Florida aren’t authorized to test marijuana and it could be three to six months before public labs have the equipment in place and meet law enforcement standards.
While Aronberg’s email went countywide, the subject also came up at a recent meeting of theLaw Enforcement Planning Council, a group of police chiefs, Atlantis Police Chief Robert Mangold said.
“It will be problematic in establishing PC (probable cause)” Mangold said. “Also, time-consuming and costly due to lab testing.”
This new normal for cannabis in Palm Beach County means easy busts on routine traffic stops are much more complicated. Officers using their well-attuned nostrils need to also marshal their other senses.
“We believe that in order to do a search based on odor you will need something additional, such as an admission that the substance is marijuana/THC oil, or furtive movements,” Aronberg’s office told law enforcement.
Great-grandma in cuffs
Even before the hemp law passed, police were in a paradox. Despite CBD products sold everywhere in Florida, a 69-year-old great-grandmother was arrested in May at an Orlando theme park for having CBD oil in her purse to treat her arthritis. Her product had no THC.
It will be a challenge for police to adapt, said Ted Gonzales, the executive director of the Palm Beach County Association of Chiefs of Police.
“Now they have to go back to service training and make sure officers know their rights,” he said.
But the hemp law isn’t exactly a get-out-of-jail free card for those found stoned behind the wheel. Gonzales said field sobriety tests can determine if someone is driving under the influence.
The Department of Agriculture will establish rules about the legalization of hemp and the courts will clarify the criminal statutes as cases proceed, Aronberg spokesman Mike Edmondson said.
“I think we are going to wait on the appellate courts to sort this all out,” defense attorney Chapman said.
Agriculture Commissioner Nikki Fried, the Democrat who championed the bill, said in June that farming hemp can be a $10 billion to $20 billion industry in Florida. Stressed out orange groves can be turned into hemp farms, she said.
No word yet if the orange on Florida’s license plates will be changed to a cannabis leaf.
And Florida isn’t the only state grappling with these changes.
The North Carolina State Bureau of Investigation wrote to that state’s Legislature expressing concerns on making arrests for possession.
“The inability for law enforcement to distinguish between hemp and marijuana is problematic in all marijuana prosecutions, from small amounts to trafficking amounts of plant material,” the group told lawmakers.
But in what may be a prelude, courts in Nevada, Maryland, Arizona and California have said the smell of cannabis is still enough for a warrantless search of a vehicle.
Snyder, Martin County’s sheriff, said it’s not up to the courts but lawmakers to clarify the cannabis conundrum. He said he hopes a lab that can detect trace amounts of marijuana can be up and running in six months.
In Miami-Dade County, the public defender is already taking the bit between the teeth.
“The legalization of marijuana for a rapidly growing number of Floridians and businesses means that marijuana odor, in and of itself, is no longer an indication of criminality in Florida,” Assistant Miami-Dade Public Defender Fan Li wrote in a recent motion in the sniff-and-search case of Victor Chavez.
Chavez is fighting charges after officers found four large ziploc bags filled with marijuana.
Prosecutors in Miami-Dade pushed back on Chavez’s defense ‒ but that was in February before the new hemp law. All they would say in the wake of the hemp act was they were reviewing options.
Sheriff Snyder noted that an officer’s job is to execute the law as directed.
“I’m not a policy-maker,” he said. “I’m a policy enforcer.”