How Changing Hemp Laws Altered Marijuana Search-and-Seizure Rules

Police and prosecutors across the country are grappling with questions regarding the impact of federal hemp laws on criminal marijuana investigations. As one state attorney in Florida put it: Legal hemp is going to make state-level marijuana arrests a whole lot tougher.marijuana arrest

Los Angeles marijuana criminal defense lawyers understand it comes down to the way marijuana trafficking investigations are so often initiated around the country: The ever-objective nose test.

To be fair, cannabis does have its own distinct olfactory properties. As many defense attorneys will tell you in states where the drug is still either banned entirely or restricted to card-carrying medical users, a sizable percentage of marijuana arrests begin with a traffic stop, detection of that aroma and a warrantless vehicle search. (These searches often yield items unrelated, such as other narcotics, firearms, etc.)

Historically, it’s been difficult for marijuana defense lawyers to dispute an officer’s sense of smell, especially where marijuana was indeed later found.

But now, virtually all arrests stemming from that common scenario are going to be called into question, if a memo from one state attorney is correct.

State Attorney: No More Sniff-and-Search Arrests, Prosecutions

On July 1st, Florida law (which two years ago legalized medicinal marijuana) officially caught up with provisions of the 2018 U.S. Farm Bill requiring all states to adjust their statutes to align with the decriminalization of industrial hemp and low-THC CBD products (those containing less than 0.3 percent of the psychoactive THC). Outside of doctor-recommended use, the drug is still illegal under state law. Even in jurisdictions where it has been largely decriminalized, the smell of it still served as grounds for probable cause for conducting a vehicle search without a warrant.

The problem now? Marijuana smells just like hemp – which is fully legal. That unique odor is present not just in the leaves of both plants but also oils, edibles and other processed consumer goods.

Per the state prosecutor’s memo, the state “will no longer be able to prosecute any marijuana or THC oil cases without a test from an accredited lab indicating that the THC content is over 0.3 percent.”

A news article published by The Palm Beach Post characterized this directive as “devastating” to local marijuana trafficking cases.

In fact, the the sheriff of that county, which does have an accredited drug testing lab, instructed deputies to halt all marijuana drug arrests – at least until laboratory processes are established to make clear distinctions between marijuana and hemp. (At this time, they are not equipped to identify only the tiniest traces of THC, only whether its positive or negative presence.)

Even those narcotic-sniffing K-9 dogs? They’ll still be of use in other cases, including those involving other drugs. But where their noses detect pot? It’s pointless.

Furthermore, law enforcement officers were instructed to cease probable cause searches/arrests predicated on suspected cannabis-related offenses.

Public defenders across the state have begun the process of  mass-filing motions to dismiss pending drug charges that fit this bill.

Not exactly, though it’s worth noting if you plan to travel to South Florida anytime soon. Unlike Florida, California and half a dozen other states have legalized marijuana not just for medicinal but recreational use. By state law, possession of up to one ounce of cannabis is legal.
When marijuana was first legalized in California, police associations throughout the state went through similar growing pains. As noted in a memo published by the California Police Officers Association, penned by a special investigations narcotics detective in Sacramento County, 11362.1 (c) of the Health and Safety Code makes it clear that all cannabis and related products that are lawful under state law are no longer considered the subject of valid search and seizure constituting the basis for detaining, searching or arresting someone.
“The verbiage now dramatically effects the way we investigate marijuana crimes,” the detective wrote.
Bottom line: If someone is at least 21 and in legal possession of marijuana as outlined in Proposition 64, the basis of a probable cause/search is no longer applicable. However, law enforcement can still technically make an arrest for marijuana possession – if a person isn’t just a recreational pot user or licensed business owner. That requires some reasonable suspicion/probable cause that the individual is growing/producing/selling/transporting/possessing marijuana outside the scope of Prop. 64. That, the officer noted, is no longer achieved with a simple smell test.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, ancillary companies, patients, doctors and those facing marijuana charges. Call us at 714-937-2050.

Additional Resources:

With new hemp law, ‘sniff and search’ goes up in smoke, July 12, 2019, John Pacenti, The Palm Beach Post