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Legalization of Hemp & It’s Implications on Probable Cause to Search Based on Odor

Golburgh Law July 25, 2019

The odor of marijuana emanating from a person or from a driver’s vehicle has long been a legal reason for an officer to conduct a search of that person or his or her vehicle. It has provided “probable cause.” However, the legalization of Hemp in the state of Florida has changed that.

Hemp and Marijuana are derived from the same Cannabis plant. Therefore, they both look and smell the same. As the result, police officers in Florida can no longer rely on the odor alone to establish probable cause to detain or search a person or his/her vehicle. Florida police officers will now need more than odor alone to establish probable cause. In addition to odor or viewing the ‘leaves’ in plain view, they will need to see weapons, scales, multiple baggies, impairment, or a confession in order to establish probable cause to search. They will need to rely on the ‘totality of circumstances’ in order to establish probable cause to believe the substance they see or smell is THC rather than Hemp or CBD.

Because of this change in the law, the current field tests used by law enforcement to establish the presence of THC are no longer valid. Many law enforcement agencies have issued bulletins to their officers indicating their field test kits are obsolete and not to be used. Ultimately, new field test kits that can distinguish between THC and CBD will be necessary, and are in fact, on the way. At some point, recreational marijuana will likely be legal in Florida, rendering this entire discussion moot.