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Jack Campbell suspends marijuana prosecutions

Campbell suspends marijuana prosecutions

Second Judicial Circuit State Attorney Jack Campbell has suspended prosecutions for marijuana (cannabis) cases until further notice.  In a letter to “Law Enforcement Partners”, signed by “Your friend” Jack Campbell, the prosecutor has decided that because legal hemp and illegal marijuana are indistinguishable, his office cannot prosecute them under most conditions.

The issue was created when the Florida Legislature passed Senate Bill 1020 into law as Florida Statute section 581.217.  That statute now essentially legalizes distribution (and therefore possession) of hemp extract containing less than .03% THC.  The problem is that >.03% THC hemp and illegal marijuana cannot be distinguished from one another in most circumstances.  Telling which is which requires a quantitative analysis by a lab – of which there are none available in Florida at this time.

As such, Jack Campbell suspended marijuana prosecutions as his office cannot prove which is which in court at a trial.  That is a prudent decision on his part.

No more “odor of marijuana” as basis for searches

What is more worrisome, however, are his statements about drug detection on the streets.  He wrote:

The drug sniffing K9s that have been trained on marijuana will likely alert to those [CBD] products, as they are trained to detect any amount of THC.  Hemp products look and smell exactly like marijuana products.

. . .

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.

. . .

We will 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.

What the prosecutor is saying is that when a car is pulled over, and the officer thinks that he or she smells marijuana, that could have led to a search of the vehicle – in the past.  Now, because they smell “exactly” the same, the cop could be smelling a LEGAL substance.  In that case, there would be no basis to search the car.  Same logic goes for dogs.  What’s worse, a dog is trained to alert for many types of drugs.  A dog cannot tell the officer is it smells marijuana, hemp, cocaine, meth . . . it just gives an alert (usually pawing at the car, or sitting – depends on the training).

That creates a scenario where an illegal search could happen, which is what the prosecutor is trying to avoid.  Consider the following example:  a car is driven by a felon who is in illegal possession of a firearm. The driver has legal hemp products in the car.  The car is pulled over, and a drug dog is brought to the scene, and makes an alert.  The car is searched, and the firearm is found.  The driver is arrested for a second-degree felony, taken to jail, and is facing a mandatory two year prison sentence.

The driver’s attorney would file a motion to suppress evidence, saying the alert was a mistake, a false alert, to a legally possessed substance.  Thus, the defense attorney would argue, the search was illegal and the fruit of the search (the firearm) was illegally seized.  As such, it cannot be used as evidence a trial.  The trial court would have no choice but to grant the motion. Countless tax dollars will have been spent on the case, and a person would be sitting in jail on an illegal search.  Surely, that scenario and others like it were not contemplated by the Florida Legislature (or the hemp lobby).

It seems that law enforcement will now be faced with having to retire its current drug dogs, and train a whole new crop.  The current dogs will always be suspected of false alerts – how do you untrain a dog, and get it to stop alerting for marijuana?  Even is such were to be possible, there will always be the question of whether the dog is getting it right.  Remember, dogs can’t talk.

Hemp gummies and violations of probation

The next problem is people who violate probation sentences by testing positive for using marijuana.  By Jack Campbell’s letter, it seems that it is impossible to discern legal hemp from illegal marijuana in a urinalysis.  There will be people sitting in jail for using a legal substance?  Will the prosecutor suspend violation proceedings, too?

That Jack Campbell suspends marijuana prosecutions is not his fault. This is the fault of the legislature, who passed the hemp law without providing the funding to properly test the substances.  I would guess that prosecutors all over the State will be (or already have) taking the same approach.

Campbell suspends marijuana prosecutions

Again, a reasonable decision by the chief prosecutor.  After all, it is better to let twelve guilty people go free than to convict one innocent person.

If you have a marijuana case that occurred after July 31, 2019, contact us for a free consultation.