When members of Congress voted to legalize hemp late last year, they likely did not envision that it would make it harder for law enforcement in places such as Florida and Texas. But that’s exactly what has happened.
Officials in both Florida and Texas have voiced their intention to stop the prosecution of low-level marijuana cases. That’s because no reliable field test exists that can tell the difference between the presence of hemp, which won’t get you high, and cannabis, which will.
The nose doesn’t know
A state attorney in Florida recently announced he is done prosecuting some marijuana crimes until a reliable field test is developed. He also said he will not authorize search warrants in cases where officers or police dogs smell marijuana because it could easily be hemp.
“Much of the search and seizure law hinges on either the officer’s or K-9’s ability to smell,” State Attorney Jack Campbell wrote in a letter to law enforcement agencies in his jurisdiction. “This seems to now be in significant doubt.”
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Campbell’s 2nd Judicial Circuit encompasses Leon, Franklin, Gadsden, Jefferson, Liberty, and Wakulla counties in the Florida Panhandle. And he’s not alone. Officials in Palm Beach County have stopped “sniff and search” – a situation where if an officer smelled marijuana, they could perform a warrantless search.
Campbell’s letter of frustration
In his letter, Campbell wrote extensively about how local officials are caught in the middle of laws that don’t always mesh. In Florida, hemp is now legal. Congress made hemp legal as part of the 2018 Farm Bill, and the Florida Legislature also passed its own action on the issue.
However, recreational marijuana remains illegal both at the national level and in Florida.
Hemp products are supposed to contain a level of THC that is less than .3 percent. But that’s impossible to tell just from looking at hemp, which can look and smell just like cannabis.
Campbell said in some cases, current testing systems might indicate a positive THC result where no THC is present. He said the issue had created a “practical frustration,” but one that could be resolved if an accurate test is developed.
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Texas confronts the same issue
In Texas, the second-most populous state (Florida is third), the same issue had led to “chaos,” according to the Texas Tribune. Texas Department of Public Safety officers have now been told to write up those caught possessing less than 4 ounces of marijuana with a misdemeanor citation rather than arresting them.
That’s because prosecutors in the state are starting to do the same thing as Campbell in Florida – not seek to prosecute low-level marijuana cases.
While the memo to officers in Texas stated that legalized hemp did not “negate probable cause for marijuana-related offenses,” the state does not currently have the testing equipment to reliably tell the difference between the presence of hemp or marijuana.
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