The lack of access to a test that can distinguish between hemp and marijuana is forcing Florida state attorney’s offices and law enforcement agencies to rethink the way they handle marijuana charges and seizures after the new hemp law came into effect July 1.
The new law made Cannabidiol (CBD) and other derivatives of hemp with less than 0.3 percent Tetrahydrocannabinol (THC) no longer a controlled substance. The change in law complicates matters because many field tests and narcotics detection K9s are not capable of distinguishing between products, rendering their training and experience useless in marijuana detection.
As a result, several state attorney’s offices around Florida, including those representing Collier and Lee counties, have issued advisories and directives to the law enforcement agencies in their regions about how they will treat marijuana arrests until the testing issues are sorted out.
Bruce Colton, the State Attorney of the 19th Judicial Circuit, which covers Indian River, Martin, Okeechobee and St. Lucie counties, issued a memo to agencies indicating the odor and appearance of marijuana was no longer enough to establish probable cause.
“Law enforcement officers should therefore look for other evidence of illegality before taking any action that requires probable cause,” Colton wrote.
Adding to the issues, Colton wrote that to prosecute a cannabis offense, the agencies would have to submit the suspected drugs to a DEA-licensed facility for testing before the filing of formal charges. The cost of testing and having an expert validate the results could also be prohibitive, he warned.
St. Lucie County Sheriff Ken Mascara forwarded Colton’s advisory to his personnel, adding that his agency could not send evidence to the Indian River Crime Lab because it could not provide the quantitative analysis required for prosecution. His agency also doesn’t have a system to transport marijuana to a DEA-licensed facility in Pennsylvania that could perform the testing.
“Seizures of marijuana should only be made where an individual voluntarily admits to possession of contraband,” Mascara wrote. “Until further notice, all other seizures require supervisory review and justification before any marijuana-like substance may be taken into custody.”
Other state attorneys have adopted a similar stance.
“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,” Elizabeth Neto, an assistant state attorney in the 15th Judicial Circuit wrote in a July 1 email to agencies in the Palm Beach County area. “With this in mind, each agency and its legal advisors will need to make decisions on when to seize suspected marijuana/THC oil and when to make an arrest. 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.”
Memo of Understanding Regarding Prosecution of Cannabis and Tetrahydroca… by Devan Patel on Scribd
The 15th Judicial Circuit, which includes Broward County, executed a memorandum of understanding with its law enforcement agencies that outlines the different requirements for arrests and how they will be prosecuted.
Misdemeanor, juvenile, felony and trafficking cases all have different protocols. The memorandum also required a specific new test and independent lab testing at the time of trial.
The document indicated that each law enforcement agency was doing independent training and seeing their own policies, said Assistant State Attorney Denise Neuner in an internal email.
“The Officers are being asked to comply with their Department’s own internal policy and procedures as set out by their Legal Advisors,” she wrote.
Jack Campbell, the State Attorney for the 2nd Judicial Circuit, recently issued a letter to law enforcement agencies in which he stated his office would hold off prosecuting marijuana possession cases.
“This office will no longer be charging people with possession of cannabis absent a confession to what the substance is or testing by a lab that can meet the evidentiary standards I have laid out,” Campbell wrote.
He said his office also won’t approve search warrants or other process based on whether officers or their dogs “feel a substance is cannabis.”
Campbell’s letter also indicated that there were no public or private labs in Florida that could perform the necessary testing, nor could the Florida Department of Agriculture.
With search and seizure heavily reliant on officer identification of cannabis, Campbell added that case law would suggest it would not be sufficient in the coming months and years.
Samantha Syoen, communications director for the State Attorney’s Office of the 20th Judicial Circuit, which encompasses much of Southwest Florida, said her office agreed with the legal analysis in Campbell’s letter.
“We have advised law enforcement as well,” Syoen said. “We will also continue to look at each case by reviewing the facts, the law and the totality of the evidence in each specific case.”
The Collier County Sheriff’s Office declined to comment on how the new law would impact the deployment of its K9 unit, which has dogs trained to detect marijuana, citing the answer as tactical information.