The tell-tale smell of cannabis smoke has long been law enforcement’s best excuse for questioning and detaining people over suspected cannabis possession. And police often use “marijuana odor” as a pretense for stop-and-frisks and searches, whether they actually detected a smell or not. But in Florida, the mere odor of cannabis will no longer be enough cause to detain and search people suspected of consuming or possessing weed. Not because Florida police departments are relaxing their enforcement of marijuana laws. But instead, because Florida has legalized hemp, and officers don’t have the training or the technology to distinguish cannabis from its non-psychoactive cousin.
After the U.S. federal government legalized hemp late last year, states have been moving to revise their own marijuana laws to carve out space for legal hemp. Under the blanket prohibition of cannabis, many state laws didn’t make a distinction between hemp—now defined as cannabis with less than 0.3 percent THC—and the forms of cannabis people consume for recreational and health reasons.
But in light of the lifting of the federal ban on hemp and hemp products, which range from clothing, food and textiles to cannabidiol (CBD) products, states are bringing their own rules in line with the new federal law.
And in Florida, the legalization of hemp is causing an interesting knockdown effect: it’s changing the way police enforce laws against marijuana. So when Florida’s legal hemp law went into effect July 1, 2019, removing hemp and hemp products from the state’s list of controlled substances and therefore making it legal to possess, Florida police departments began instructing officers that the smell of cannabis alone could no longer be just cause for detaining a person or conducting a search.
Despite the major difference between hemp and weed—their respective quantities of THC—the two breeds of cannabis have much in common. In the first place, hemp and weed have virtually the same odor. And to the untrained or inexperienced, the plants can look and feel very similar. Indeed, as far as their legal definitions go, the only difference between marijuana and hemp is which side of the 0.3 percent THC they fall on. Go over, and the law considers that to be an illegal substance. Stay under, and you’ve got legal hemp.
And it’s exactly because of their similarities, and the apparent difficulty officers have telling the difference, that Florida police departments are changing their enforcement of marijuana laws. Before hemp was legalized, the alleged “smell of marijuana” was enough to stop, search and detain someone. Now, however, smell alone isn’t enough.
Instead, Florida police officers now have to produce “odor plus” in order to stop someone for suspected cannabis possession. And according to a memo sent to the Miami New Times by the Florida Police Legal Bureau, “plus” means additional factors that would lead an officer to suspect the presence of illicit marijuana and not legal hemp. “Accordingly, officers can no longer search a vehicle based solely on the odor of cannabis,” the memo reads.
The memo defines “odor plus” as including factors like signs of impairment, any admissions or statements a suspect might make regarding marijuana or any information or intelligence that suggests illegal activity. If an officer can articulate any of those factors, then they can detain and search a suspect.
Implementation of the policy shift began in sheriff’s departments in Central Florida, according to the Orlando Sentinel. And on July 19, the change was adopted by Florida’s largest police force, the Miami-Dade Police Department. Other police departments across Florida municipalities are following suit.
Overall, the new “odor plus” requirements should make it more difficult for officers to stop, detain and even arrest people for suspected marijuana possession. And Florida’s legalization of hemp could introduce further changes to the way police investigate alleged cannabis possession. For example, the Florida Department of Police only tests cannabis samples for the presence of THC, not whether THC quantities go over the 0.3 percent limit, according to the Miami New Times. But now that plants with THC below that amount are legal, police will likely have to adopt new testing procedures.
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