Police across Southwest Florida are pressing pause on illegal marijuana arrests until they can get new field tests.
The standard used to be if police saw it or smelled it, they had probable cause to search for marijuana. But now that hemp is legal with the passage of SB 1020, it is not so easy.
“Hemp is legal, marijuana is not. So how do we know one from the other?” said Dr. Dave Thomas, a criminal justice expert from Florida Gulf Coast University.
The kits used by law enforcement can only test for the presence of cannabis, not for levels of THC, a high-inducing chemical. But THC levels are the key difference between hemp and marijuana, which are just two different strains of the same cannabis plant.
Right now, police field tests cannot distinguish the two, and neither can state labs.
Thomas says that is causing problems for police, and he believes this will slow down arrests.
“Because you can’t prove it. And any good defense attorney would say, ‘well how did you know the difference between marijuana and hemp? How were you able to determine that?’” Thomas said.
In July, the Florida Sheriffs Association (FSA) sent out a legal alert explaining that since hemp is legal, law enforcement can no longer rely on sight or smell alone to determine probable cause for a search for marijuana.
“Sheriffs should not assume that a positive field test provides probable cause to search or arrest,” the alert reads. “Additional factors aside from a canine alert may be needed to establish probable cause.”
Extra indicators could be other drugs, paraphernalia or guns.
Naples Police told WINK News in an email, “NPD is currently not making physical arrests for misdemeanor possession of suspected marijuana.”
Cape Coral Police also wrote in an email, “At this point, without being able to determine the THC level of a green leafy substance, we cannot arrest an individual for possession.”
Communications Director Samantha Syoen from State Attorney Amira Fox’s office said:
“All law enforcement agencies have been notified verbally by State Attorney Fox that in order for the State Attorney’s Office to proceed on marijuana cases there must be a lab test quantifying the percentage of THC in a substance. The agencies would be responsible for the cost of the lab testing,” Syoen wrote via email. “State Attorney Fox has also advised that our office will continue to look at each case on a case by case basis.”
But other State Attorney districts have announced they will not charge people for marijuana possession unless they confess, or the until police adopt new tests.
READ: State Attorney Jack Campell’s Letter to Law Enforcement
“They won’t prosecute cases because they can’t prove it beyond a reasonable doubt,” Thomas said.
In response to the decision by some state attorneys, U.S. Attorney for the Northern District of Florida Larry Keefe said his office would be willing to look over and possibly take marijuana cases to federal court.
To work around this issue, Charlotte County Sheriff’s Office says they have put in orders for tests that are supposed to differentiate between hemp and marijuana. But they are still waiting for delivery.
The third-party company, Syndicate Alliance, is currently the only distributor of these tests in the United States.
Punta Gorda Police also ordered these new kits and provided WINK News the details of their new procedures. They say police also need to test the suspected marijuana with both the new and old kits, and if both come back positive, then the police can confiscate it. But no arrest should be made on scene.
Still, Thomas said this does not mean you are off the hook if you are found with what seems like marijuana.
“We can hold onto the evidence and then test for it later and then come back and file the charges,” Thomas said.
Even though some agencies are getting new kits, the tests still have to be validated by state labs for their reliability, and the state says it is currently unable to do so.
Law Enforcement Agencies Response to WINK News
No law enforcement agency in the area would speak with WINK News on camera, but some provided statements via email. Below are their responses.
Florida Department of Law Enforcement statement:
“Currently the laboratories in the state of Florida have only been able to determine that plant material is cannabis. Hemp and Marijuana are the same plant, “cannabis”, the only difference is the amount of THC or CBD certain strains of hemp and cannabis produce. With the new legislation the laboratories current practice of stating this plant material is cannabis is not sufficient to distinguish the strains.
The labs must now determine the amount of THC that is in the plant material or edible. This requires a more complicated and time consuming process and the laboratories struggle to keep up with the current workloads. Implementing even a semi-quantitative testing process will require additional equipment and personnel to handle the increased submissions and the lengthier exams.”
Charlotte County Sheriff’s Office statement:
“On July 1, 2019, SB 1020 was signed into law, redefining Cannabis and amending FSS 893.02. The bill created the state hemp program and removed hemp as a listed controlled substance. As an agency, we are still examining the effects of this change as they relate to roadside investigations involving cannabis possession. Possession of cannabis is illegal, with exceptions for medical purposes for which a person would have proper identification.
“We ordered new THC field test kits which will assist investigations by distinguishing legal hemp from illegal cannabis the amount of THC in a substance. The test kits are from Syndicate Alliance and we are waiting on their delivery. We have also established a relationship with a local laboratory in Sun City, Florida.
“As with any other changes in law, we continue to work with our local State Attorney’s Office to ensure our practices meet their requirements for prosecution.”
Punta Gorda Police Department statement:
The department responded with a copy of a General Order sent to all Punta Gorda Police Department Personnel titled “SB 1020 Hemp Bill & Marijuana Investigations.”
Collier County Sheriff’s Office statement:
“This information is tactical in nature and as such is exempt from release.”
“We are always looking at options for the most cost-effective and efficient ways to conduct testing.”
“We are continuing to research alternatives.”
“We have not requested guidance. The standard for arrest remains probable cause. Methods to determine probable cause evolve over time.”
Naples Police Department statement:
“In accordance with the direction provided to us by the State Attorney for the 20th Judicial Circuit, NPD is currently not making physical arrests for misdemeanor possession of suspected marijuana in light of the legislation passed both Congress and the Florida Legislature making hemp and its derivatives with .3 percent or less of THC lawful.
“Instead, NPD officer are collecting evidence and forwarding the case facts to the State Attorney’s Office, so that the State Attorney’s Office can review the facts, the law, and the totality of the evidence in each specific case, and will file for an arrest warrant if appropriate.”
Fort Myers Police Department statement:
“Determining the presence of marijuana relies on investigative techniques that I [Deputy Police Chief Jeff Meyers] will not discuss…”
“We are currently looking at different forms of field testing. We have not committed to any form, company, kit, etc. at this time. Private labs are always an option, but cost can be a factor.”
“We are working with all of our LE partners to come up with solutions to this very new situation and continue to have open communications…”
Cape Coral Police Department statement:
“Effective July 1, 2019, the State of Florida legalized the possession of hemp (SB 1020). Hemp and Cannabis are both derived from the SAME plant-Cannabis Sativa. While hemp contains .3% THC or less, illegal Cannabis typically contains between 2% and 30% THC. Hemp is defined under a new section of Florida Statute, 581.217 as the plant Cannabis sativa L and any part of that plant that has a total Delta 9 THC concentration (the component responsible for the “high”) that does not exceed .3% on a dry weight basis.
“Essentially, hemp is marijuana that only has a THC level of .3%. However, there is no presumptive field test in the United States that can accurately detect the percentage of THC present in a green leafy substance. We have also spoken with the Florida Department of Law Enforcement to see if their lab can test for the percentage level of THC in a green leafy substance and they cannot determine the THC level. In talking to the State Attorney’s Office, they cannot prosecute a case without having the level of THC determined.
“This also effects CBD oil arrests. There is a requirement to have CBD oil tested for the level of THC, which will require a private lab. This is cost prohibitive and at this time we are unable to make CBD oil arrests. Even if the label indicates an illegal level of THC, that alone is not enough according to our State Attorney’s Office.
“Where does this leave us with marijuana investigations? At this point, without being able to determine the THC level of a green leafy substance, we cannot arrest an individual for possession. However, we are researching further on the Sale and delivery statute with the State Attorney’s Office. The use of the K9’s is also now limited. If you see other indicators of drug use such as a burnt spoon or a syringe, a K9 could do an open-air sniff for other illegal narcotics. It is imperative that you are very detailed in your probable cause affidavits in these cases.
“We will be continuing to work closely with the State Attorney’s Office, the Florida Department of Law Enforcement and other local law enforcement agencies to determine the best practices in handling marijuana investigations going forward. If any new information develops, we will keep you updated.”
Lee County Sheriff’s Office declined to provide a statement.