At least one Tampa, Florida cannabis prosecutor has developed an imminently reasonable and science-based process for determining whether or not cannabis prosecutions will proceed in Hillsborough County, Florida.
“The traditional testimony of officer’s training and experience is of no use. These legal products will test positive for THC with the current presumptive test kits in use.”
Apparently the roadside, presumptive, field reagent test used by law enforcement cannot accurately detect illegal marijuana. Until such a test is developed, the Tampa Florida based prosecutor will not proceed with many cannabis prosecutions.
During the past several years the cannabis issue has been highly politicized. This new policy by the Hillsborough County State attorney’s office is based on science. #Refreshing
“Current field tests are insufficient to establish beyond a reasonable doubt”
TO: All Assistant State Attorneys
Date: September 4, 2019
From: State Attorney Andrew Warren
Re: Prosecution of Marijuana Cases following the enactment of the Hemp law.
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 felon in possession of a firearm or offenses involving other controlled substances.
Florida’s new hemp law took effect on July 1, 2019. Since that time, our office has been discussing the prosecutorial impact of the law with elected representatives, other State Attorney’s Offices, and our law enforcement partners. Over the past two months, we have provided guidance consistent with this memorandum within our office while waiting to see what, if any, policy changes our law enforcement partners would make with respect to investigating and arresting cannabis offenses. This memorandum formalizes the guidance ASAs have already been given.
Senate Bill 1020, known as the “Hemp Law,” went into effect on July 1, 2019. This law legalizes the possession and use of hemp. The bill defines hemp as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, 2 isomers, acids, salts, and salts of isomers thereof, whether growing or not, that has a total delta-9 tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis.” See Florida Statute §581.217(3)(d). The new law changes the definition of cannabis such that the term excludes hemp as defined in section 581.217. Cannabis and hemp both come from the same plant, Cannabis sativa L. Cannabis and hemp look, feel and smell the same, and both can be smoked. The main difference between hemp and cannabis is that hemp has a total delta-9 tetrahydrocannabinol (THC) concentration that does not exceed 0.3%. If the THC concentration of the plant is less than or equal to 0.3%, then the plant is hemp, and is legal in Florida. If the THC concentration of the plant exceeds 0.3%, then the plant is cannabis and is illegal in Florida (subject to medicinal exceptions).
Impact on Prosecution
The Hemp Law will impact prosecutors and law enforcement. Specifically, the new law affects our ability to prove beyond a reasonable doubt that a substance is illegal cannabis as opposed to legal hemp. Given the inability to distinguish between hemp and cannabis visually or through smell, the only current reliable method is quantitative testing. In order to prove beyond a reasonable doubt that a substance is cannabis, we need quantitative testing to establish that the THC level exceeds 0.3% on a dry weight basis.
Prosecutorial ethics preclude us from charging an offense without a good faith belief that we can prove the offense beyond a reasonable doubt. Accordingly, for any cannabis-related offense occurring on or after July 1, 2019, our office needs a reliable, admissible laboratory test result establishing the suspected substance is illegal cannabis rather than hemp before filing charges. Because, pursuant to Florida Rule of Criminal Procedure 3.191, the speedy trial period starts at the time of arrest, probable cause arrests for cannabis offenses made before law enforcement has obtained a reliable, admissible positive (≥ 0.3% THC) lab test result may jeopardize the successful prosecution of such offenses, absent other circumstances.
Current field tests are insufficient to establish beyond a reasonable doubt that a substance exceeds the 0.3% THC concentration. Law enforcement agencies locally and statewide are working diligently to develop best practices and procedures to meet this challenge. In the meantime, law enforcement is working with private labs to provide reliable and admissible quantitative testing. A law enforcement agency must submit the suspected substance to a DEAlicensed facility for quantitative testing and ensure that proper chain of custody is preserved. To ensure that the results of any such testing are not excluded by the Court, the particular lab testing methodology utilized must be capable of meeting the Daubert standard. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). ACS Laboratory, located in Hillsborough County, is the largest cannabis and hemp testing laboratory in the southeastern United States. ACS Laboratory has advised that it can produce results that will give a quantitative amount of THC in 2-5 business days. More information about ACS Laboratory is available at http://www.acslabcannabis.com
. ASAs should familiarize themselves with the information on the lab practices and procedures necessary to submit evidence of a cannabis offense.
The Hemp Law does not affect our current prioritization of cannabis cases. Among cannabis-related offenses, our office will continue to prioritize felonies: trafficking, manufacturing, delivery, sale, possession with intent, and felony-amount possession cases. We will likewise continue 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 felon in possession of a firearm or offenses involving other controlled substances. Although we anticipate that law enforcement will direct file charges after obtaining a positive lab result in lieu of making an arrest, whether a defendant is arrested or direct filed will not affect the priority of the prosecution.
These changes will increase the cost of prosecuting cannabis related offenses. Law enforcement will pay the increased expenses for the necessary quantitative testing prior to our office filing charges. Our office will pay for expert witness testimony to prosecute cannabis cases, subject to the volume of cases and budgetary constraints.
Impact on Probable Cause Investigations and Admissible Evidence
As in any prosecution, ASAs must evaluate cannabis cases to ensure the admissibility of evidence. Probable cause to search in cannabis investigations has often been based on odor or plain view from a vehicle or person. As noted above, however, hemp and illegal cannabis look and smell the same. As a result, the Hemp Law creates additional Fourth Amendment challenges related to cannabis-based searches.
We continue to work with law enforcement to establish best practices to protect people’s Fourth Amendment rights while ensuring successful prosecutions based upon lawful searches and seizures. Under the new Hemp law, the visual observation of suspected cannabis or its odor alone is likely no longer sufficient to establish probable cause to believe a crime is being committed or that evidence of a crime is present. The probable cause standard requires merely a reasonable basis to believe that a crime was committed or that evidence of the crime exists. Accordingly, in most instances, an “odor plus” standard likely demonstrates probable cause to conduct a warrantless cannabis-based search. Many local and statewide law enforcement agencies are adopting this standard.
Below is a non-exhaustive list of “odor plus” factors. This list provides a starting point for ASAs working through these issues in cases involving warrantless cannabis-based searches.
1. Information or intelligence regarding illicit activity prior to the stop
2. Knowledge of the subject’s prior recent criminal history for narcotics violations
3. Observation of a hand-to-hand transaction prior to the stop
4. Admission that the substance is illegal cannabis
5. Conflicting or implausible statements
6. Nervousness, such as:
a. Sweating when it is not hot
b. Shaking or trembling hands
c. Avoiding eye contact
7. Furtive movements
8. Discarding, destroying, or trying to hide a substance
9. A large amount of currency
10. Currency in rubber-banded “quick count bundles”
11. Masking agents such as fabric softener, air fresheners, or coffee grinds
12. Firearms or other weapons
13. 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)
14. Signs of impairment on a driver (such as bloodshot, watery eyes or slurred speech)
ASAs must assess the documentation of these “odor plus” factors when making evaluations related to charging determinations and admissible evidence. ASAs must always keep in mind that probable cause is assessed under the totality of the circumstances standard, and thus looking for documentation and evidence of circumstances in addition to the sight or odor of cannabis is fundamental to our evaluation of a case.
Our office will continue to provide guidance as to the latest legal developments related to these Fourth Amendment issues.
As these issues work through our court system, we will continue to monitor new court decisions and law enforcement procedures. We intend for this information to help guide your decision-making as you evaluate your cases rather than dictate specific prosecution decisions. Please consult with your supervisors should you have questions or additional thoughts. The recent legal changes make this an evolving area of law, and it is therefore imperative that we continue to communicate effectively to ensure the appropriate and consistent handling of cannabis offenses to advance our mission of public safety, fairness, and justice.
Leon County Cannabis Update September 21, 2019
301 S. MONROE STREET
TALLAHASSEE, FLORIDA 32399-255o
SECOND JUDICIAL CIRCUIT OF FLORIDA
July 30, 2019
Dear Law Enforcement Partners
I have just returned from our annual Florida Prosecuting Attorney’s Summer Conference where our board discussed many significant issues. One of the most pressing is that of Florida’s new hemp law and how it impacts other prosecutions. This letter does NOT address medical marijuana. I agree that the issues often interrelate, but for the sake of clarity I only address the hemp issue here.
Both Congress and the Florida Legislature have now passed laws making hemp, CBD, and other derivatives with 3 percent or less of THC, lawful. The specific definition is: “Hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers thereof, whether growing or not, that has a total delta-9 tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis.” Florida Statute 581.217 2019.
Previously, I was present at a meeting and demonstration at the Florida Department of Agriculture on July 8, 2019 where a vendor, a Navy Seal, showed a possible presumptive test that would be able to differentiate these items. They stated they were working with AVO labs and the Broward State Attorney’s Office to validate the test. I mentioned that the tests were of no use unless they were validated and that we would need expert testimony to be able to establish their scientific reliability in court.
At the conference, I met with the Broward State Attorney’s team and am sorry to report that that they were hoping that AVO was going to be able to both validate and provide the expert testimony necessary. However, they have withdrawn after it was discovered they did not have a DEA License allowing them to even possess marijuana, let alone test it. Hence, I would not recommend you invest in those tests. The current status is that we are hoping to get a presumptive test that will work in Florida, but we don’t have it yet. We recommend keeping your current presumptive tests though as they will likely be needed even when the new additional presumptive test is retained.
In addition to presumptive or roadside tests, we also will need full testing for trial. The Attorney General’s Chief of Staff and General Counsel have explained the FDLE is currently looking at two possible courses to allow quantification testing of samples. Previously, we would need only qualitative testing as all forms of the cannabis plants were illegal. Now, cannabis and its extracts or derivatives are legal if it has THC concentrations below 3 %
The current posture is that no public or private lab in Florida can do this dispositive testing. The Florida Department of Agriculture is unable to do so, and while there are some private labs that may want to get this business, they are not online as of now. The traditional testimony of officer’s training and experience is of no use. These legal products will test positive for THC with the current presumptive test kits in use. The drug sniffing K9s that have been trained on marijuana will likely alert to these products, as they are trained to detect any amount of THC. Hemp products look and smell exactly like marijuana products.
Some municipal labs in larger jurisdictions are also trying to invest in technology that will either allow full or partial quantification. If FDLE does so, or your agency is willing to have the samples privately tested, we will consider filing these cases. I would suggest that if you are contemplating using a non-governmental lab to do your testing, please consult with us. The cost of testing may be far less than what it will cost for us to secure the expert testimony necessary to comply with Florida evidence rules. Furthermore, the lab you are using may not be capable of meeting the Daubert predicate, and if so, the evidence will be excluded. Daubert v. Merrell Dow Pharm Inc.. 509 U.S. 579585113 S. Ct. 27862792125 L. Ed. 20469 1993.
My current hope is that the Florida Legislature, Florida Department of Agriculture, and the Florida Department of Law Enforcement will work to resolve this problem. It is clear that cannabis is still illegal, and I intend to enforce the laws as written. While this has created a practical frustration, it does not appear to be insurmountable.
Of greater concerns, are the associated issues we will face due to this status. Much of the search and seizure law hinges on either the officer’s or K-9’s ability to smell. This seems to now be in significant doubt. I would suggest that your officers and deputies no longer rely purely on their identification of believed cannabis. While it used to allow further detentions and seizures, case law from other jurisdictions suggest it will not be sufficient in the coming months and years.
Finally, perhaps the most egregious oversite is that of juvenile law. At present, there is no additional restriction on children possessing CBD or Hemp. It is my understanding that some shops are now making pre-rolled hemp cigarettes and are selling hemp gummies. The irony that children cannot lawfully possess tobacco but can now have hemp candies and cigarettes is astounding. I again hope that the Florida Legislature will address this problem.
To conclude, 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. We will also not be approving search warrants or other legal process based on traditional predicates where officers, or their dogs and presumptive tests, feel a substance is cannabis. I know this is a significant change in the law and would caution you in making arrests when these issues are present.
I am confident we can work through these challenges together as we have in the past. We will be lobbying the legislature to fund presumptive testing and final analytical testing, and to regulate possession by minors. Please let me know if you have any questions or concerns.
2nd Judicial Circuit