From the Tampa Legal Team: News you can use. Memo has gone out from Andrew H. Warren, State Attorney for the 13th Judicial Circuit regarding changes to marijuana prosecutions in Hillsborough County, as follows:
“Effective immediately, our office will not file charges nor prosecute any cannabis case with an offense date on or after July 1, 2019 without a scientifically reliable, admissible test that proves beyond a reasonable doubt that the substance contains a THC level above the 0.3% threshold that distinguishes illegal cannabis from legal hemp. Among cannabis-related offenses, our office will continue to prioritize felonies: trafficking, manufacturing, delivery, sale, possession with intent, and felony-amount possession cases, while continuing to deprioritize the prosecution of misdemeanor cannabis cases in favor of established diversion and civil citation programs. Also, we will continue to prioritize the prosecution of cannabis-related felonies in which other felonies are part of the same transaction or occurrence, such as [a] felon in possession of a firearm or offenses involving other controlled substances.”State Attorney Andrew H. WArren, 13th Judicial Circuit, Florida.
Joe’s Commentary on Changes to Marijuana Prosecutions:
This memo is too important to make light of or over emphasize. It’s just one defense lawyer’s opinion, but I think Mr. Warren has struck a blow for fairness and equality and ought to be applauded for the depth and quality thought that is behind the broad philosophy expressed therein. I for one think it will make a real difference in our community.
Plain Smell problems
Lawyers, judges and law enforcement officers have been wrestling with the fine points of the “plain view” exception to the warrant requirement since around 1980, but as sometimes happens, the doctrine has grown to include “plain feel” cases and most notably for the hemp v. marijuana discussion, “plain smell” cases.
It goes something like this. Officer Tough stops a car for failing to signal a turn, but when he approaches the car, driven by a young man with long hair and a beard, he says, “I smell an odor of marijuana emanating from your car sir, step out of the vehicle.”
Florida courts have consistently ruled that “plain smell” provides sufficient evidence of a crime, i.e. possession of marijuana, and therefore it is permissible under the 4th Amendment of the Constitution to search the vehicle without a warrant.
Then, the Florida legislature legalized possession of hemp on July 1, 2019. Burning hemp smells just like burning marijuana owing to the fact that they both are basically the same plant, the only difference being the concentration of the chemical THC.
As reported in yesterday’s post, Hillsborough State Attorney Andrew H. Warren and many other state attorneys in Florida are trying to navigate around the problem inherent in having two substances that give off the same odor, one of which is illegal and therefore may provide the basis for a search, and one of which is legal and does not provide the basis for a search.
Mr. Warren’s suggestion to all assistant state attorneys and obviously to all law enforcement agencies is that they should now adopt something he called the “odor plus” standard, which he said is being adopted by many agencies in Florida. So, along with the odor, the police are going to need something else, something to give them that precious “probable cause” to conduct a warrantless search.
Here’s his “non-exhaustive” list of suggested hints law enforcement might want to be on the lookout for, (and which I have a feeling will soon be heard repeated in court):
“Odor Plus” Factors List (non-Exhaustive)
- Information or intelligence regarding illicit activity prior to the stop.
- Knowledge of the subject’s prior recent criminal history for narcotics violations.
- Observation of a hand-to-hand transaction prior to the stop.
- Admission that the substance is illegal cannabis.
- Conflicting or implausible statements.
- Nervousness, such as:
- Sweating when it is not hot
- Shaking or trembling hands
- Avoiding eye contact
- Furtive movements.
- Discarding, destroying, or trying to hide a substance.
- A large amount of currency.
- Currency in rubber-banded “quick count bundles”.
- Masking agents such as fabric softener, air fresheners or coffee grinds.
- Firearms or other weapons.
- Drug paraphernalia, such as baggies, pipes, heat sealers, or scales, (although legal hemp may be stored in a baggie and smoked in a pipe as well).
- Signs of impairment on a driver (such as bloodshot, watery eyes or slurred speech.)
Joe’s Commentary on Changes to Probable Cause in Marijuana Cases
Suggestions for “odor plus” findings to justify a warrantless search seemed strained at best; I have a feeling they were arrived at by a committee urgently looking for ways around the delicate issue of search and seizure (Sweating when it’s not hot? It’s always hot).
Those of us who have litigated search and seizure issues understand how difficult it is for judges to reach the correct result, and why so many lower court rulings are reversed on appeal. Coming up with suggestions for police to write in reports does not seem to be a genuine effort to solve the problem. There is also the question that nags at judges, lawyers, and maybe police officers, what of the cases in which a police officer says he smelled marijuana, but there is no marijuana found in the car or on the person?
Read the Full Memo on Changes to Marijuana Prosecutions here:
If you have a pending case for marijuana possession and would like to find out more information including whether these changes could impact you, please call our office for a consultation.