Odor of Cannabis and Probable Cause in Florida

 Odor of Cannabis in Florida

"the recent legalization of hemp, and under certain circumstances marijuana, does not serve as a sea change undoing existing precedent, and we hold that regardless of whether the smell of marijuana is indistinguishable from that of hemp, the smell of marijuana emanating from a vehicle continues to provide probable cause for a warrantless search of the vehicle."

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT  

EVANS JOSHUA OWENS, ) ) Appellant, ) ) 

v. ) Case No.  2D20-537 ) STATE OF FLORIDA, ) ) 

Appellee. ) ) 

Opinion filed March 31, 2021.  

Appeal from the Circuit Court for Hillsborough County; Kimberly K. Fernandez, Judge. 

Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant. 

Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee. 

VILLANTI, Judge.

 

Evans Joshua Owens challenges his judgment and sentence following his guilty plea to the offense of possession of methamphetamine.  He argues that the trial court erred in denying his preserved, dispositive motion to suppress.  Owens argues, in 

pertinent part, that the search of his vehicle was based solely on the odor of marijuana and that because possession of marijuana in some instances, and hemp in all instances, has been legalized in Florida, the odor of marijuana can no longer serve as the basis for probable cause to search a vehicle because the odor of marijuana cannot be distinguished from that of hemp.  We reject this argument and affirm Owens' judgment and sentence.  

We are aware of the decision of the Twentieth Judicial Circuit Court of Florida that held that the smell of marijuana in connection with a traffic stop cannot constitute the sole basis supporting probable cause for a search.  See State v. Nord, 28 Fla. L. Weekly Supp. 511 (Fla. 20th Cir. Ct. Aug. 8, 2020). With all due respect to the capable and experienced circuit judge who authored that opinion, we cannot agree.  Instead, we hold that an officer smelling the odor of marijuana has probable cause to believe that the odor indicates the illegal use of marijuana.  Accordingly, to the extent that it conflicts with this decision, we disapprove of Nord and adopt the opinion of the Ninth Judicial Circuit of Florida in State v. Ruise, 28 Fla. L. Weekly Supp. 122 (Fla. 9th Cir. Ct. Mar. 20, 2020) (holding that an officer who smelled the odor of marijuana during a traffic stop had probable cause for a warrantless search of the vehicle, even though the odor of cannabis was found to be indistinguishable from the odor of now legal hemp). 

We also note that, in this case, the officer was responding to a complaint of reckless and erratic driving; and Owens' odd and erratic responses to the officer's attempts to communicate with him, coupled with the smell, caused the officer to reasonably conclude that Owens should not be "behind the wheel of a vehicle."  Thus, the circumstances supported the officer's conclusion that he had probable cause to 

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detain Owens and to search his vehicle.1  Finally, we note that even if marijuana was legalized for recreational use, such use while driving would still support the offense of driving while intoxicated; thus, regardless of whether marijuana becomes decriminalized for recreational use, the smell of the burning substance will continue to provide probable cause for a search of a vehicle.  See Johnson v. State, 275 So. 3d 800, 802 (Fla. 1st DCA 2019) ("[E]ven if smoking marijuana were legal altogether, the officers would have probable cause based on the fact that Johnson was operating a car." (citing § 316.193(1)(a), Fla. Stat. (2018))).2  "The probable cause standard, after all, is a 'practical and common sensical standard.'  It is enough if there is the 'the kind of fair probability' on which 'reasonable and prudent people, not legal technicians, act.' " Id. (quoting Florida v. Harris, 568 U.S. 237, 244 (2013)).  

We recognize that there may be a circumstance where an occupant of a vehicle may have a legitimate explanation for the presence of the smell of fresh (not burning or burnt) marijuana in the vehicle, such as where the individual has a lawful prescription for it, or that the substance is, in fact, hemp.  But even the current version of section 381.986, which permits qualified physicians to prescribe the smoking of marijuana as "an appropriate route of administration for a qualified patient," see § 381.986(4)(c),3 continues to prohibit the use of smoked marijuana in vehicles, see 1 As Owens exited the vehicle, the officer saw a plastic bag in plain sight containing a crystal-like substance that was later proven to be methamphetamine. 2

We are confident that in the event marijuana becomes legal for recreational use in Florida, the legislature will amend the statutes pertaining to driving while intoxicated accordingly

. 

3As amended by ch. 2019-1, Laws of Florida. 

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§ 381.986(1)(j)5 (providing that "medical use" of marijuana does not include use of marijuana on any form of public transportation; in any public place; or on a school bus, vehicle, aircraft, or motorboat "except for low-THC cannabis not in a form for smoking" (emphasis added)).  Cf. Johnson, 275 So. 3d at 802 (holding that even if the driver was a medical marijuana user, this would not defeat probable cause).  

We concede, without affirmatively holding, that such a circumstance (such as where the individual has a lawful prescription or that the substance is hemp) might provide an affirmative defense to a charge of a criminal offense, but it would not prevent the search. Nevertheless, we can think of no circumstance where an affirmative defense might lie where the impetus for the search arose from the smell of burnt marijuana in a vehicle.  

Accordingly, we conclude that the recent legalization of hemp, and under certain circumstances marijuana, does not serve as a sea change undoing existing precedent, and we hold that regardless of whether the smell of marijuana is indistinguishable from that of hemp, the smell of marijuana emanating from a vehicle continues to provide probable cause for a warrantless search of the vehicle. See, e.g., State v. Brookins, 290 So. 3d 1100, 1104 (Fla. 2d DCA 2020) ("Our supreme court has observed that the odor of burnt marijuana emanating from a vehicle—like we have here—provides probable cause to search each of the vehicle's occupants." (citing State v. Betz, 815 So. 2d 627, 633 (Fla. 2002))); accord Johnson, 275 So. 3d at 802. 

Affirmed. 

SLEET and SMITH, JJ., Concur. 

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Tampa Cannabis Decriminalized - Complete Text of Tampa Cannabis Ordinance

"Many of the citations issued are on or near major highways, 

leading us to believe they may be associated 

with traffic stops and searches."

UPDATE May 1, 2016

Decriminalization of Cannabis in Tampa has generated some data on where the citations are being issued. We just obtained a map showing the locations of the first batch of citations issued in the new City of Tampa Marijuana Citation law. Many of the citations issued are on or near major highways, leading us to believe they may be associated with traffic stops and searches. The information about each detention for alleged marijuana ordinance violations can be found by clicking on the red pins on the cannabis ordinance violation map.

MAP: Civil citations for marijuana-related violations

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Map of Tampa Marijuana / Cannabis Citations Issued

"arrests and prosecutions for cannabis will continue"

The City of Tampa Florida, has just passed an ordinance decriminalizing possession of cannabis (less than 20 grams). Hash oil and derivatives are still felonies. The complete text of the new cannabis ordinance is below. The short version: Fines; For a first offense $75.00; For a second offense $150.00; For a third offense $300.00; For a fourth or subsequent offense $450.00.

UPDATE April 8, 2016

Tampa Bay area law enforcement and the Hillsborough County State Attorney's Office have notified at least one media source that arrests and prosecutions for cannabis will continue for those arrested by anyone other than the Tampa Police Department. So, for example a fan arrested at Tampa Stadium by a Hillsborough County Sheriff or a Florida Highway Patrol State Trooper will still be prosecuted, even though the stadium is inside the Tampa City Limits. Beyond that, cops still have the power to forfeit a vehicle used during the commission of cannabis offenses.

UPDATE April 1, 2016

Today the new law takes effect. But, Tampa Police Department Attorney Kirby Rainsberger says that civil citations will be issued ONLY when the suspect is not a minor; there are no other criminal charges; suspect can be released on own recognizance; and the suspect has no unpaid fines. Check out The Tampa Tribune Marijuana story here. The Mayor of Tampa's comments and a History of the Marijuana Ordinance is here.

 "doesn't make us any less anti-drug, but it's a realization 

that the penalties that have been imposed have done 

more damage to the trajectories of young peoples' 

lives than the offenses have warranted."

Mayor Bob Buckhorn

Why Didn't Tampa Repeal Its Marijuana Forfeiture Law?

Tampa did not change its forfeiture ordinance, so expect police to be financially motivated to continue misdemeanor marijuana busts. The City council did not repeal Tampa City Ordinance 14-30. The Tampa law provides that it is a violation of this section and a motor vehicle shall be subject to impoundment whenever the vehicle was used, intended, or attempted to be used to facilitate the commission or attempted commission of any misdemeanor violation of F.S. Ch. 893 (Florida's Drug Law). See Video at the bottom of this article.

Tampa Remains the King of Marijuana Forfeitures

One media source has reported "No law enforcement agency in West/Central Florida seizes more vehicles under Florida's Contraband Forfeiture Act than the Tampa Police Department. And half of the 1,500 vehicles it seizes annually are either kept for agency use or turned into cash, either through settlements with the original owner or through sale at auction." The source reported "Tampa city ordinance 14-30 sets a flat $500 fee to get a vehicle back after a misdemeanor arrest, regardless of what happens to the charges. The city reports collecting the fee more than 500 times last year."

Tampa Cannabis Decriminalized
Complete Text of Tampa Cannabis Ordinance

ORDINANCE NO. 2016-__

AN ORDINANCE OF THE CITY OF TAMPA, FLORIDA, CREATING TAMPA CODE SECTION 14-62 MAKING POSSESSION OF TWENTY GRAMS OR LESS OF CANNABIS UNLAWFUL, MAKING POSSESSION OF DRUG PARAPHERNALIA AS DEFINED HEREIN UNLAWFUL, PROVIDING FOR CIVIL PENALTIES, AMENDING TAMPA CODE SECTION 23.5-5 TO SPECIFY THE AMOUNT OF CIVIL FINE FOR VIOLATION, AND PROVIDING AN EFFECTIVE DATE. 

WHEREAS, Florida Statute Subsection 893.13(6)(b) provides that the possession of twenty (20) grams or less of cannabis (marijuana), intended only for consumption of the possessor, is a misdemeanor criminal offense; and

WHEREAS. Florida Statute Subsection 893.147(1) provides that the possession of

drug paraphernalia as defined in Florida Statute Section 893.145 is a misdemeanor criminal offense; and

WHEREAS, the Tampa City Council finds that particularly where the citizen's only

known offense at the time of arrest is possession for personal use of a small amount of cannabis, or paraphernalia for administration thereof, criminal penalties and potentially lifelong criminal record are disproportionate to the severity of the offense; and

WHEREAS, the Tampa City Council finds that established civil penalties and

procedures are more commensurate with the offense of possession of twenty grams or less of cannabis or paraphernalia when that is the only chargeable offense.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF TAMPA, FLORIDA:

Section 1. That Tampa Code Section 14-62 is hereby created to read in its entirety as follows:

Sec. 14-62. Possession of cannabis or paraphernalia.

(a) Definitions.

(1)  Cannabis means all parts of any plant of the genus Cannabis, whether growing or not and the seeds thereof. The tern does not include the resin or oil extracted from any part of the plant or "'low-THC cannabis" as defined in Florida Statute § 381.986 if manufactured, possessed. sold, purchased, delivered, distributed, and dispensed in conformance with § 381.986.

(2)  Paraphernalia means any object used, intended for use, or designed for use, in ingesting, inhaling, smoking, or otherwise introducing cannabis into the human body.

(b)  Any person who possesses twenty (20) grams or less of cannabis as defined herein except as otherwise authorized by law commits a violation of this subsection.

(c)  Any person who possesses paraphernalia as defined herein except as otherwise authorized by law commits a violation of this subsection.

(d)  A person charged with possession of cannabis under subsection (b) may not be charged with possession of paraphernalia under subsection (e) arising out of the same incident.

(e)  Penalties and Procedure


(1)  The provisions of Tampa Code Chapter 23.5 shall apply to all violations charged pursuant to this section.

(2)  Violation of this section is deemed to be an irreparable or irreversible violation punishable by civil penalty as a Class I offense.

(3)  If the applicable civil penalty is not paid within 30 days from the citation date, in addition to the procedure provided in Tampa Code Chapter 23.5 in the event of such nonpayment, the defendant will no longer be eligible for the alternative enforcement procedures provided by this section.

Section 2. That Tampa Code subsection 23.5-4(e) is hereby amended as follows:

(f)  After issuing a citation to an alleged violator, a code enforcement officer shall deposit the original and one (1) copy of the citation with the  City Attorney's Office. If the citation is not paid within thirty (30) days of the date of issuance. the City Attorney's Office shall forward the original and one (1) copy of the citation to the county court.

Section 3. That Tampa Code Subsection 23.5-5(a) is hereby amended by adding the underlined part as follows:

Sec. 23.5-5 Schedule of violations and penalties.

(a)  Violations of the following sections of the Tampa City Code are considered Class I violations and will carry a fine of:

For a first offense $75.00
For a second offense $150.00
For a third offense $300.00
For a  fourth or subsequent offense $450.00


Sources:

Tampa, Florida Marijuana Cannabis Ordinance
https://atg.tampagov.net/sirepub/meetresults.aspx?meettype=Council%20Regular&cscRedirectID=497
http://legacy.wtsp.com/story/news/investigations/2014/11/25/policing-for-profit-tampa-police-seizures/70096900/
http://www.tampagov.net/sites/default/files/planning/files/supp_81/supp_81_ch14_9_10_13.pdfbr /> http://www.tampagov.net/

List of Florida Florida Forfeiture Statutes - Complete Text

Federal forfeitures are used in prosecutions of federal law violations. Florida frequently uses this tool in state statutes. Here is a list of a few of the provisions under Florida law 932.701.

List of Florida Forfeiture Items

• Automobiles 
• Vessels and Boats
• Aircraft
• Real Estate
• Personal Property

List of Crimes For Florida Forfeiture

• Felonies in Conjunction with Use of Property
• Real Property used in a felony
• Motor vehicle used in a felony
• Vessel used in a felony

Complete Text of Florida Forfeiture Laws

CHAPTER 2016-179 

Committee Substitute for Committee Substitute for Senate Bill No. 1044

An act relating to contraband forfeiture; amending s. 932.701, F.S.; conforming provisions to changes made by the act; amending s. 932.703, F.S.; specifying that property may be seized only under certain circumstances; defining the term “monetary instrument”; requiring that specified persons approve a settlement; providing circumstances when property may be deemed contraband; allocating responsibility for damage to seized property and payment of storage and maintenance expenses; requiring the seizing agency to apply for an order, within a certain timeframe, making a probable cause determination after the agency seizes property; providing application requirements; requiring a court to make specified determinations; providing procedures upon certain court find­ings; authorizing the court to seal any portion of the application and of specified proceedings under certain circumstances; amending s. 932.704, F.S.; providing requirements for a filing fee and a bond to be paid to the clerk of court; requiring that the bond be made payable to the claimant under certain circumstances unless otherwise expressly agreed to in writing; increasing the evidentiary standard from clear and convincing evidence to proof beyond a reasonable doubt that a contraband article was being used in violation of the Florida Contraband Forfeiture Act for a court to order the forfeiture of the seized property; increasing the attorney fees and costs awarded to claimant under certain circumstances; requiring a seizing agency to annually review seizures, settlements, and forfeiture proceedings to determine compliance with the Florida Contraband Forfeiture Act; providing requirements for seizing law enforcement agencies; requiring seizing law enforcement agencies to adopt and implement specified written policies, procedures, and training; requiring law enforcement agency personnel to receive basic training and continuing education; requiring the maintenance of training records; amending s. 932.7055, F.S.; conforming provisions to changes made by the act; creating s. 932.7061, F.S.; providing reporting requirements for seized property for forfeiture; creating s. 932.7062, F.S.; providing penalties for noncompli­ance with reporting requirements; amending s. 322.34, F.S.; providing for payment of court costs, fines, and fees from proceeds of certain forfeitures; conforming provisions to changes made by the act; amending ss. 323.001, 328.07, and 817.625, F.S.; conforming provisions to changes made by the act; providing an effective date. 

Be It Enacted by the Legislature of the State of Florida: Section 1. Subsection (1) of section 932.701, Florida Statutes, is amended to read:  

932.701 Short title; definitions.— 

(1) Sections 932.701-932.7062 932.706 shall be known and may be cited as the “Florida Contraband Forfeiture Act.” 

Section 2. Subsection (1) of section 932.703, Florida Statutes, is amended, a new subsection (2) is added, and present subsections (2) through 

(8) are redesignated as subsections (3) through (9), respectively, to read: 

932.703 Forfeiture of contraband article; exceptions.— 

(1)(a) A Any contraband article, vessel, motor vehicle, aircraft, other personal property, or real property used in violation of any provision of the Florida Contraband Forfeiture Act, or in, upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken or is taking place, may be seized and shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act. A seizure may occur only if the owner of the property is arrested for a criminal offense that forms the basis for determining that the property is a contraband article under s. 932.701, or one or more of the following circumstances apply: 

1. The owner of the property cannot be identified after a diligent search, or the person in possession of the property denies ownership and the owner of the property cannot be identified by means that are available to the employee or agent of the seizing agency at the time of the seizure; 

2. The owner of the property is a fugitive from justice or is deceased; 

3. An individual who does not own the property is arrested for a criminal offense that forms the basis for determining that the property is a contraband article under s. 932.701 and the owner of the property had actual knowledge of the criminal activity. Evidence that an owner received written notification from a law enforcement agency and acknowledged receipt of the notification in writing, that the seized asset had been used in violation of the Florida Contraband Forfeiture Act on a prior occasion by the arrested person, may be used to establish actual knowledge; 

4. The owner of the property agrees to be a confidential informant as defined in s. 914.28. The seizing agency may not use the threat of property seizure or forfeiture to coerce the owner of the property to enter into a confidential informant agreement. The seizing agency shall return the property to the owner if criminal charges are not filed against the owner and the active criminal investigation ends or if the owner ceases being a confidential informant, unless the agency includes the final forfeiture of the property as a component of the confidential informant agreement; or 

5. The property is a monetary instrument. For purposes of this subparagraph, the term “monetary instrument” means coin or currency of the United States or any other country; a traveler’s check; a personal check; a bank check; a cashier’s check; a money order; a bank draft of any country; an investment security or negotiable instrument in bearer form or in other form such that title passes upon delivery; a prepaid or stored value card or other device that is the equivalent of money and can be used to obtain cash, property, or services; or gold, silver, or platinum bullion or coins. 

(b) After property is seized pursuant to the Florida Contraband Forfeiture Act, regardless of whether the civil complaint has been filed, all settlements must be personally approved by the head of the law enforcement agency that seized the property. If the agency head is unavailable and a delay would adversely affect the settlement, approval may be given by a subordinate of the agency head who is designated to grant such approval Notwithstanding any other provision of the Florida Contra­band Forfeiture Act, except the provisions of paragraph (a), contraband articles set forth in s. 932.701(2)(a)7. used in violation of any provision of the Florida Contraband Forfeiture Act, or in, upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken or is taking place, shall be seized and shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act. 

(c) If at least 90 days have elapsed since the initial seizure of the property and the seizing agency has failed to locate the owner after making a diligent effort, the seized property is deemed a contraband article that is subject to forfeiture under the Florida Contraband Forfeiture Act All rights to, interest in, and title to contraband articles used in violation of s. 932.702 shall immediately vest in the seizing law enforcement agency upon seizure. 

(d)1. The seizing agency may not use the seized property for any purpose until the rights to, interest in, and title to the seized property are perfected in accordance with the Florida Contraband Forfeiture Act. This section does not prohibit use or operation necessary for reasonable maintenance of seized property. Reasonable efforts shall be made to maintain seized property in such a manner as to minimize loss of value. 

2. Unless otherwise expressly agreed to in writing by the parties, the agency seeking forfeiture of the seized property is responsible for any damage to the property and any storage fees or maintenance costs applicable to the property. If more than one agency seeks forfeiture of the property, the division of liability under this subparagraph may be governed by the terms of an agreement between the agencies. 

(2)(a) When a seizure of property is made under the Florida Contraband Forfeiture Act, the seizing agency shall apply, within 10 business days after the date of the seizure, to a court of competent jurisdiction for an order determining whether probable cause exists for the seizure of the property. The application for the probable cause determination must be accompanied by a sworn affidavit and may be filed electronically by reliable electronic means. 

(b) The court must determine whether: 

The owner was arrested under paragraph (1)(a), and if not, whether an exception to the arrest requirement specified in paragraph (1)(a) applies; and 

Probable cause exists for the property seizure under the Florida Contraband Forfeiture Act. 

(c) If the court finds that the requirements specified in paragraph (1)(a) were satisfied and that probable cause exists for the seizure, the forfeiture may proceed as set forth in the Florida Contraband Forfeiture Act, and no additional probable cause determination is required unless the claimant requests an adversarial preliminary hearing as set forth in the act. Upon such a finding, the court shall issue a written order finding probable cause for the seizure and order the property held until the issue of a determination of title is resolved pursuant to the procedures defined in the act. 

(d) If the court finds that the requirements in paragraph (1)(a) were not satisfied or that probable cause does not exist for the seizure, any forfeiture hold, lien, lis pendens, or other civil encumbrance must be released within 5 days. 

(e) The court may seal any portion of the application and the record of any proceeding under the Florida Contraband Forfeiture Act which is exempt or confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution or may otherwise be sealed pursuant to Rule 2.420, Florida Rules of Judicial Administration. 

Section 3. Subsection (4), paragraph (b) of subsection (5), paragraph (b) of subsection (6), subsections (8), (10), and (11) of section 932.704, Florida Statutes, are amended to read: 

932.704 Forfeiture proceedings.— 

(4) The seizing agency shall promptly proceed against the contraband article by filing a complaint in the circuit court within the jurisdiction where the seizure or the offense occurred, paying a filing fee of at least $1,000 and depositing a bond of $1,500 to the clerk of the court. Unless otherwise expressly agreed to in writing by the parties, the bond shall be payable to the claimant if the claimant prevails in the forfeiture proceeding and in any appeal. 

(5) 

(b) If no person entitled to notice requests an adversarial preliminary hearing, as provided in s. 932.703(3)(a) 932.703(2)(a), the court, upon receipt of the complaint, shall review the complaint and the verified supporting affidavit to determine whether there was probable cause for the seizure. Upon a finding of probable cause, the court shall enter an order showing the probable cause finding. 

(6) 

(b) The complaint must, in addition to stating that which is required by s. 932.703(3)(a) and (b) 932.703(2)(a) and (b), as appropriate, describe the property; state the county, place, and date of seizure; state the name of the law enforcement agency holding the seized property; and state the name of the court in which the complaint will be filed. 

(8) Upon proof beyond a reasonable doubt clear and convincing evidence that the contraband article was being used in violation of the Florida Contraband Forfeiture Act, the court shall order the seized property forfeited to the seizing law enforcement agency. The final order of forfeiture by the court shall perfect in the law enforcement agency right, title, and interest in and to such property, subject only to the rights and interests of bona fide lienholders, and shall relate back to the date of seizure. 

(10) The court shall award reasonable attorney’s fees and costs, up to a limit of $2,000 $1,000, to the claimant at the close of the adversarial preliminary hearing if the court makes a finding of no probable cause. When the claimant prevails, at the close of forfeiture proceedings and any appeal, the court shall award reasonable trial attorney’s fees and costs to the claimant if the court finds that the seizing agency has not proceeded at any stage of the proceedings in good faith or that the seizing agency’s action which precipitated the forfeiture proceedings was a gross abuse of the agency’s discretion. The court may order the seizing agency to pay the awarded attorney’s fees and costs from the appropriate contraband forfeiture trust fund. Nothing in this subsection precludes any party from electing to seek attorney’s fees and costs under chapter 57 or other applicable law. 

(11)(a) The Department of Law Enforcement, in consultation with the Florida Sheriffs Association and the Florida Police Chiefs Association, shall develop guidelines and training procedures to be used by state and local law enforcement agencies and state attorneys in implementing the Florida Contraband Forfeiture Act. At least annually, each state or local law enforcement agency that seizes property for the purpose of forfeiture shall periodically review such seizures of assets made by the agency’s law enforcement officers, any settlements, and any forfeiture proceedings initiated by the law enforcement agency, to determine whether they such seizures, settlements, and forfeitures comply with the Florida Contraband Forfeiture Act and the guidelines adopted under this subsection. If the review suggests deficiencies, the state or local law enforcement agency shall promptly take action to comply with the Florida Contraband Forfeiture Act. 

(b) The determination as to of whether an agency will file a civil forfeiture action is must be the sole responsibility of the head of the agency or his or her designee. 

(c)(b) The determination as to of whether to seize currency must be made by supervisory personnel. The agency’s legal counsel must be notified as soon as possible after a determination is made. 

(d) The employment, salary, promotion, or other compensation of any law enforcement officer may not be dependent on the ability of the officer to meet a quota for seizures. 

(e) A seizing agency shall adopt and implement written policies, procedures, and training to ensure compliance with all applicable legal requirements regarding seizing, maintaining, and the forfeiture of property under the Florida Contraband Forfeiture Act. 

(f) When property is seized for forfeiture, the probable cause supporting the seizure must be promptly reviewed by supervisory personnel. The seizing agency’s legal counsel must be notified as soon as possible of all seizures and shall conduct a review to determine whether there is legal sufficiency to proceed with a forfeiture action. 

(g) Each seizing agency shall adopt and implement written policies and procedures promoting the prompt release of seized property as may be required by the act or by agency determination when there is no legitimate basis for holding seized property. To help ensure that property is not wrongfully held after seizure, each law enforcement agency must adopt written policies and procedures ensuring that all asserted claims of interest in seized property are promptly reviewed for potential validity. 

(h) The settlement of any forfeiture action must be consistent with the Florida Contraband Forfeiture Act and the policy of the seizing agency. 

(i) Law enforcement agency personnel involved in the seizure of property for forfeiture shall receive basic training and continuing education as required by the Florida Contraband Forfeiture Act. Each agency shall maintain records demonstrating each law enforcement officer’s compliance with this requirement. Among other things, the training must address the legal aspects of forfeiture, including, but not limited to, search and seizure and other constitutional considerations. 

Section 4. Subsection (3) and paragraph (c) of subsection (5) of section 932.7055, Florida Statutes, are amended to read: 

932.7055 Disposition of liens and forfeited property.— 

(3) If the forfeited property is subject to a lien preserved by the court as provided in s. 932.703(7)(b) 932.703(6)(b), the agency shall: 

(a) Sell the property with the proceeds being used towards satisfaction of any liens; or 

(b) Have the lien satisfied prior to taking any action authorized by subsection (1). 

(5) 

(c) An agency or organization, other than the seizing agency, that wishes to receive such funds shall apply to the sheriff or chief of police for an appropriation and its application shall be accompanied by a written certification that the moneys will be used for an authorized purpose. Such requests for expenditures shall include a statement describing anticipated recurring costs for the agency for subsequent fiscal years. An agency or organization that receives money pursuant to this subsection shall provide an accounting for such moneys and shall furnish the same reports as an agency of the county or municipality that receives public funds. Such funds may be expended in accordance with the following procedures: 

Such funds may be used only for school resource officer, crime prevention, safe neighborhood, drug abuse education, or drug prevention programs or such other law enforcement purposes as the board of county commissioners or governing body of the municipality deems appropriate. 

Such funds shall not be a source of revenue to meet normal operating needs of the law enforcement agency. 

After July 1, 1992, and during every fiscal year thereafter, Any local law enforcement agency that acquires at least $15,000 pursuant to the Florida Contraband Forfeiture Act within a fiscal year must expend or donate no less than 25 15 percent of such proceeds for the support or operation of any drug treatment, drug abuse education, drug prevention, crime prevention, safe neighborhood, or school resource officer program or programs program(s). The local law enforcement agency has the discretion to determine which program or programs program(s) will receive the desig­nated proceeds. 

Notwithstanding the drug abuse education, drug treatment, drug preven­tion, crime prevention, safe neighborhood, or school resource officer minimum expenditures or donations, the sheriff and the board of county commissioners or the chief of police and the governing body of the municipality may agree to expend or donate such funds over a period of years if the expenditure or donation of such minimum amount in any given fiscal year would exceed the needs of the county or municipality for such program or programs program(s). Nothing in this section precludes The minimum requirement for expenditure or donation of forfeiture proceeds in excess of the minimum amounts established in this subparagraph does not preclude expenditures or donations in excess of that amount herein. 

Section 5. Section 932.7061, Florida Statutes, is created to read: 

932.7061 Reporting seized property for forfeiture.— 

(1) Every law enforcement agency shall submit an annual report to the Department of Law Enforcement indicating whether the agency has seized or forfeited property under the Florida Contraband Forfeiture Act. A law enforcement agency receiving or expending forfeited property or proceeds from the sale of forfeited property in accordance with the Florida 

Contraband Forfeiture Act shall submit a completed annual report by October 10 documenting the receipts and expenditures. The report shall be submitted in an electronic form, maintained by the Department of Law Enforcement in consultation with the Office of Program Policy Analysis and Government Accountability, to the entity that has budgetary authority over such agency and to the Department of Law Enforcement. The annual report must, at a minimum, specify the type, approximate value, court case number, type of offense, disposition of property received, and amount of any proceeds received or expended. 

(2) The Department of Law Enforcement shall submit an annual report to the Office of Program Policy Analysis and Government Accountability compiling the information and data in the annual reports submitted by the law enforcement agencies. The annual report shall also contain a list of law enforcement agencies that have failed to meet the reporting requirements and a summary of any action taken against the noncomplying agency by the office of Chief Financial Officer. 

(3) The law enforcement agency and the entity having budgetary control over the law enforcement agency may not anticipate future forfeitures or proceeds therefrom in the adoption and approval of the budget for the law enforcement agency. 

Section 6. Section 932.7062, Florida Statutes, is created to read: 

932.7062 Penalty for noncompliance with reporting requirements.—

A seizing agency that fails to comply with the reporting requirements in s. 932.7061 is subject to a civil fine of $5,000, to be determined by the Chief Financial Officer and payable to the General Revenue Fund. However, such agency is not subject to the fine if, within 60 days after receipt of written notification from the Department of Law Enforcement of noncompliance with the reporting requirements of the Florida Contraband Forfeiture Act, the agency substantially complies with those requirements. The Depart­ment of Law Enforcement shall submit any substantial noncompliance to the office of Chief Financial Officer, which shall be responsible for the enforcement of this section. 

Section 7. Paragraphs (a) and (c) of subsection (9) of section 322.34, Florida Statutes, are amended to read: 

322.34 Driving while license suspended, revoked, canceled, or disquali­fied.— 

(9)(a) A motor vehicle that is driven by a person under the influence of alcohol or drugs in violation of s. 316.193 is subject to seizure and forfeiture under ss. 932.701-932.7062 932.706 and is subject to liens for recovering, towing, or storing vehicles under s. 713.78 if, at the time of the offense, the person’s driver license is suspended, revoked, or canceled as a result of a prior conviction for driving under the influence. 

(c) Notwithstanding s. 932.703(1)(c) or s. 932.7055, when the seizing agency obtains a final judgment granting forfeiture of the motor vehicle under this section, 30 percent of the net proceeds from the sale of the motor vehicle shall be retained by the seizing law enforcement agency. The remaining 70 percent of the proceeds shall first be applied to payment of court costs, fines, and fees remaining due, and any remaining balance of proceeds and 70 percent shall be deposited in the General Revenue Fund for use by regional workforce boards in providing transportation services for participants of the welfare transition program. In a forfeiture proceeding under this section, the court may consider the extent that the family of the owner has other public or private means of transportation. 

Section 8. Paragraph (a) of subsection (4) of section 323.001, Florida Statutes, is amended to read: 

323.001 Wrecker operator storage facilities; vehicle holds.— 

(4) The requirements for a written hold apply when the following conditions are present: 

(a) The officer has probable cause to believe the vehicle should be seized and forfeited under the Florida Contraband Forfeiture Act, ss. 932.701­932.7062 932.706; 

Section 9. Paragraph (b) of subsection (3) of section 328.07, Florida Statutes, is amended to read: 

328.07 Hull identification number required.— 

(3) 

(b) If any of the hull identification numbers required by the United States Coast Guard for a vessel manufactured after October 31, 1972, do not exist or have been altered, removed, destroyed, covered, or defaced or the real identity of the vessel cannot be determined, the vessel may be seized as contraband property by a law enforcement agency or the division, and shall be subject to forfeiture pursuant to ss. 932.701-932.7062 932.706. Such vessel may not be sold or operated on the waters of the state unless the division receives a request from a law enforcement agency providing adequate documentation or is directed by written order of a court of competent jurisdiction to issue to the vessel a replacement hull identification number which shall thereafter be used for identification purposes. No vessel shall be forfeited under the Florida Contraband Forfeiture Act when the owner unknowingly, inadvertently, or neglectfully altered, removed, de­stroyed, covered, or defaced the vessel hull identification number. 

817.625 Use of scanning device or reencoder to defraud; penalties.— 

(2) 

Section 10. Paragraph (c) of subsection (2) of section 817.625, Florida Statutes, is amended to read: 

(c) Any person who violates subparagraph (a)1. or subparagraph (a)2. shall also be subject to the provisions of ss. 932.701-932.7062 932.706. Section 11. This act shall take effect July 1, 2016. 

Approved by the Governor April 1, 2016. Filed in Office Secretary of State April 1, 2016. 

Science and Florida Prosecutors on Cannabis Prosecution

During the past several years the cannabis issue has been highly politicized. This new policy by the Hillsborough County State attorney's office is based on science. #Refreshing

At least one Tampa, Florida cannabis prosecutor has developed an imminently reasonable and science-based process for determining whether or not cannabis prosecutions will proceed in Hillsborough County, Florida.

"The traditional testimony of officer's training and experience is of no use. These legal products will test positive for THC with the current presumptive test kits in use."

Apparently the roadside, presumptive, field reagent test used by law enforcement cannot accurately detect illegal marijuana. Until such a test is developed, the Tampa Florida based prosecutor will not proceed with many cannabis prosecutions.

During the past several years the cannabis issue has been highly politicized. This new policy by the Hillsborough County State attorney's office is based on science. #Refreshing

"Current field tests are insufficient to establish beyond a reasonable doubt"

MEMORANDUM

TO: All Assistant State Attorneys
Date: September 4, 2019
From: State Attorney Andrew Warren
Re: Prosecution of Marijuana Cases following the enactment of the Hemp law.

Summary:

Effective immediately, our office will not file charges nor prosecute any cannabis case with an offense date on or after July 1, 2019 without a scientifically reliable, admissible test that proves beyond a reasonable doubt that the substance contains a THC level above the 0.3 % threshold that distinguishes illegal cannabis from legal hemp. Among cannabis-related offenses, our office will continue to prioritize felonies: trafficking, manufacturing, delivery, sale, possession with intent, and felony-amount possession cases, while continuing to deprioritize the prosecution of misdemeanor cannabis cases in favor of established diversion and civil citation programs. Also, we will continue to prioritize the prosecution of cannabis-related felonies in which other felonies are part of the same transaction or occurrence, such as felon in possession of a firearm or offenses involving other controlled substances. 

Florida’s new hemp law took effect on July 1, 2019. Since that time, our office has been discussing the prosecutorial impact of the law with elected representatives, other State Attorney’s Offices, and our law enforcement partners. Over the past two months, we have provided guidance consistent with this memorandum within our office while waiting to see what, if any, policy changes our law enforcement partners would make with respect to investigating and arresting cannabis offenses. This memorandum formalizes the guidance ASAs have already been given. 

New Law 

Senate Bill 1020, known as the “Hemp Law,” went into effect on July 1, 2019. This law legalizes the possession and use of hemp. The bill defines hemp as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, 2 isomers, acids, salts, and salts of isomers thereof, whether growing or not, that has a total delta-9 tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis.” See Florida Statute §581.217(3)(d). The new law changes the definition of cannabis such that the term excludes hemp as defined in section 581.217. Cannabis and hemp both come from the same plant, Cannabis sativa L. Cannabis and hemp look, feel and smell the same, and both can be smoked. The main difference between hemp and cannabis is that hemp has a total delta-9 tetrahydrocannabinol (THC) concentration that does not exceed 0.3%. If the THC concentration of the plant is less than or equal to 0.3%, then the plant is hemp, and is legal in Florida. If the THC concentration of the plant exceeds 0.3%, then the plant is cannabis and is illegal in Florida (subject to medicinal exceptions).

Impact on Prosecution 

The Hemp Law will impact prosecutors and law enforcement. Specifically, the new law affects our ability to prove beyond a reasonable doubt that a substance is illegal cannabis as opposed to legal hemp. Given the inability to distinguish between hemp and cannabis visually or through smell, the only current reliable method is quantitative testing. In order to prove beyond a reasonable doubt that a substance is cannabis, we need quantitative testing to establish that the THC level exceeds 0.3% on a dry weight basis. 

Prosecutorial ethics preclude us from charging an offense without a good faith belief that we can prove the offense beyond a reasonable doubt. Accordingly, for any cannabis-related offense occurring on or after July 1, 2019, our office needs a reliable, admissible laboratory test result establishing the suspected substance is illegal cannabis rather than hemp before filing charges. Because, pursuant to Florida Rule of Criminal Procedure 3.191, the speedy trial period starts at the time of arrest, probable cause arrests for cannabis offenses made before law enforcement has obtained a reliable, admissible positive (≥ 0.3% THC) lab test result may jeopardize the successful prosecution of such offenses, absent other circumstances. 

Current field tests are insufficient to establish beyond a reasonable doubt that a substance exceeds the 0.3% THC concentration. Law enforcement agencies locally and statewide are working diligently to develop best practices and procedures to meet this challenge. In the meantime, law enforcement is working with private labs to provide reliable and admissible quantitative testing. A law enforcement agency must submit the suspected substance to a DEAlicensed facility for quantitative testing and ensure that proper chain of custody is preserved. To ensure that the results of any such testing are not excluded by the Court, the particular lab testing methodology utilized must be capable of meeting the Daubert standard. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). ACS Laboratory, located in Hillsborough County, is the largest cannabis and hemp testing laboratory in the southeastern United States. ACS Laboratory has advised that it can produce results that will give a quantitative amount of THC in 2-5 business days. More information about ACS Laboratory is available at www.acslabcannabis.com. ASAs should familiarize themselves with the information on the lab practices and procedures necessary to submit evidence of a cannabis offense. 

 The Hemp Law does not affect our current prioritization of cannabis cases. Among cannabis-related offenses, our office will continue to prioritize felonies: trafficking, manufacturing, delivery, sale, possession with intent, and felony-amount possession cases. We will likewise continue to deprioritize the prosecution of misdemeanor cannabis cases in favor of established diversion and civil citation programs. Also, we will continue to prioritize the prosecution of cannabis-related felonies in which other felonies are part of the same transaction or occurrence, such as felon in possession of a firearm or offenses involving other controlled substances. Although we anticipate that law enforcement will direct file charges after obtaining a positive lab result in lieu of making an arrest, whether a defendant is arrested or direct filed will not affect the priority of the prosecution. 

These changes will increase the cost of prosecuting cannabis related offenses. Law enforcement will pay the increased expenses for the necessary quantitative testing prior to our office filing charges. Our office will pay for expert witness testimony to prosecute cannabis cases, subject to the volume of cases and budgetary constraints. 

Impact on Probable Cause Investigations and Admissible Evidence 

As in any prosecution, ASAs must evaluate cannabis cases to ensure the admissibility of evidence. Probable cause to search in cannabis investigations has often been based on odor or plain view from a vehicle or person. As noted above, however, hemp and illegal cannabis look and smell the same. As a result, the Hemp Law creates additional Fourth Amendment challenges related to cannabis-based searches. 

We continue to work with law enforcement to establish best practices to protect people’s Fourth Amendment rights while ensuring successful prosecutions based upon lawful searches and seizures. Under the new Hemp law, the visual observation of suspected cannabis or its odor alone is likely no longer sufficient to establish probable cause to believe a crime is being committed or that evidence of a crime is present. The probable cause standard requires merely a reasonable basis to believe that a crime was committed or that evidence of the crime exists. Accordingly, in most instances, an “odor plus” standard likely demonstrates probable cause to conduct a warrantless cannabis-based search. Many local and statewide law enforcement agencies are adopting this standard. 

Below is a non-exhaustive list of “odor plus” factors. This list provides a starting point for ASAs working through these issues in cases involving warrantless cannabis-based searches. 

1. Information or intelligence regarding illicit activity prior to the stop 

2. Knowledge of the subject’s prior recent criminal history for narcotics violations 

3. Observation of a hand-to-hand transaction prior to the stop 

4. Admission that the substance is illegal cannabis 

5. Conflicting or implausible statements 

6. Nervousness, such as: 

a. Sweating when it is not hot 

b. Shaking or trembling hands 

c. Avoiding eye contact 

7. Furtive movements 

8. Discarding, destroying, or trying to hide a substance 

9. A large amount of currency 

10. Currency in rubber-banded “quick count bundles” 

11. Masking agents such as fabric softener, air fresheners, or coffee grinds 

12. Firearms or other weapons 

13. Drug paraphernalia, such as baggies, pipes, heat sealers, or scales (although legal hemp may be stored in a baggie and smoked in a pipe as well) 

14. Signs of impairment on a driver (such as bloodshot, watery eyes or slurred speech) 

ASAs must assess the documentation of these “odor plus” factors when making evaluations related to charging determinations and admissible evidence. ASAs must always keep in mind that probable cause is assessed under the totality of the circumstances standard, and thus looking for documentation and evidence of circumstances in addition to the sight or odor of cannabis is fundamental to our evaluation of a case. 

Our office will continue to provide guidance as to the latest legal developments related to these Fourth Amendment issues. 

Conclusion 

As these issues work through our court system, we will continue to monitor new court decisions and law enforcement procedures. We intend for this information to help guide your decision-making as you evaluate your cases rather than dictate specific prosecution decisions. Please consult with your supervisors should you have questions or additional thoughts. The recent legal changes make this an evolving area of law, and it is therefore imperative that we continue to communicate effectively to ensure the appropriate and consistent handling of cannabis offenses to advance our mission of public safety, fairness, and justice.

Leon County Cannabis Update September 21, 2019

To conclude, this Office will no longer be charging people with possession of cannabis

absent a confession to what the substance is or testing by a lab that can meet the evidentiary

standards I have laid out. 

JACK CAMPBELL

STATE ATTORNEY

301 S. MONROE STREET

TALLAHASSEE, FLORIDA 32399-255o

TELEPHONE: 8506066000

OFFICE OF

STATE ATTORNEY

SECOND JUDICIAL CIRCUIT OF FLORIDA

July 30, 2019

Dear Law Enforcement Partners

I have just returned from our annual Florida Prosecuting Attorney's Summer Conference where our board discussed many significant issues. One of the most pressing is that of Florida's new hemp law and how it impacts other prosecutions. This letter does NOT address medical marijuana. I agree that the issues often interrelate, but for the sake of clarity I only address the hemp issue here.

Both Congress and the Florida Legislature have now passed laws making hemp, CBD, and other derivatives with 3 percent or less of THC, lawful. The specific definition is: "Hemp" means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers thereof, whether growing or not, that has a total delta-9 tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis." Florida Statute  581.217 2019.

Previously, I was present at a meeting and demonstration at the Florida Department of Agriculture on July 8, 2019 where a vendor, a Navy Seal, showed a possible presumptive test that would be able to differentiate these items. They stated they were working with AVO labs and the Broward State Attorney's Office to validate the test. I mentioned that the tests were of no use unless they were validated and that we would need expert testimony to be able to establish their scientific reliability in court.

At the conference, I met with the Broward State Attorney's team and am sorry to report that that they were hoping that AVO was going to be able to both validate and provide the expert testimony necessary. However, they have withdrawn after it was discovered they did not have a DEA License allowing them to even possess marijuana, let alone test it. Hence, I would not recommend you invest in those tests. The current status is that we are hoping to get a presumptive test that will work in Florida, but we don't have it yet. We recommend keeping your current presumptive tests though as they will likely be needed even when the new additional presumptive test is retained.

In addition to presumptive or roadside tests, we also will need full testing for trial. The Attorney General's Chief of Staff and General Counsel have explained the FDLE is currently looking at two possible courses to allow quantification testing of samples. Previously, we would need only qualitative testing as all forms of the cannabis plants were illegal. Now, cannabis and its extracts or derivatives are legal if it has THC concentrations below 3 %

The current posture is that no public or private lab in Florida can do this dispositive testing. The Florida Department of Agriculture is unable to do so, and while there are some private labs that may want to get this business, they are not online as of now. The traditional testimony of officer's training and experience is of no use. These legal products will test positive for THC with the current presumptive test kits in use. The drug sniffing K9s that have been trained on marijuana will likely alert to these products, as they are trained to detect any amount of THC. Hemp products look and smell exactly like marijuana products.

Some municipal labs in larger jurisdictions are also trying to invest in technology that will either allow full or partial quantification. If FDLE does so, or your agency is willing to have the samples privately tested, we will consider filing these cases. I would suggest that if you are contemplating using a non-governmental lab to do your testing, please consult with us. The cost of testing may be far less than what it will cost for us to secure the expert testimony necessary to comply with Florida evidence rules. Furthermore, the lab you are using may not be capable of meeting the Daubert predicate, and if so, the evidence will be excluded. Daubert v. Merrell Dow Pharm Inc.. 509 U.S. 579585113 S. Ct. 27862792125 L. Ed. 20469 1993.

My current hope is that the Florida Legislature, Florida Department of Agriculture, and the Florida Department of Law Enforcement will work to resolve this problem. It is clear that cannabis is still illegal, and I intend to enforce the laws as written. While this has created a practical frustration, it does not appear to be insurmountable.

Of greater concerns, are the associated issues we will face due to this status. 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.

Finally, perhaps the most egregious oversite is that of juvenile law. At present, there is no additional restriction on children possessing CBD or Hemp. It is my understanding that some shops are now making pre-rolled hemp cigarettes and are selling hemp gummies. The irony that children cannot lawfully possess tobacco but can now have hemp candies and cigarettes is astounding. I again hope that the Florida Legislature will address this problem.

To conclude, this Office will no longer be charging people with possession of cannabis absent a confession to what the substance is or testing by a lab that can meet the evidentiary standards I have laid out. We will also 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. I know this is a significant change in the law and would caution you in making arrests when these issues are present.

I am confident we can work through these challenges together as we have in the past. We will be lobbying the legislature to fund presumptive testing and final analytical testing, and to regulate possession by minors. Please let me know if you have any questions or concerns.

Your friend,

Jack Campbell
State Attorney

2nd Judicial Circuit

Medical Marijuana, Odor of Cannabis, and Traffic Stops

Is the odor of burnt marijuana probable cause to search a vehicle?

Odor of Cannabis Shenanigans Case - Motion to suppress evidence denied where weed discovered in defendant's vehicle during a traffic stop after law enforcement detected the odor of burnt marijuana. Court calls shenanigans on argument that because the state has medical marijuana, the smell of weed coming from a vehicle no longer provides law enforcement with probable cause to conduct search without warrant. Was reasonable for an officer to conclude that defendant smelling of marijuana, was acting unlawfully says Florida DCA.

Map of Florida Cities With Cannabis Civil Citation Programs

Complete Opinion is here:

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-4325
_____________________________
JORDAN JOHNSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Leon County.
Robert E. Long, Judge.
July 9, 2019
PER CURIAM.

Jordan Johnson appeals his conviction for carrying a
concealed weapon. His only argument on appeal is that the trial
court should have granted his motion to suppress. We reject this
argument and affirm.

Officers initiated a 2:00 a.m. traffic stop after noticing a
headlight out on Johnson’s car. Officers then smelled burnt
marijuana, detained Johnson, and searched the car. Inside the car,
they found the gun that led to the charge.

On appeal, Johnson acknowledges “the long line of cases that
hold that the smell of burnt marijuana coming from a vehicle
provides an officer with probable cause to detain the defendant and
conduct a warrantless search.” Init. Br. at 8 (citing State v. T.P.,

2

835 So. 2d 1277 (Fla 4th DCA 2003); State v. Williams, 967 So. 2d
941 (Fla. 1st DCA 2007); State v. Jennings, 968 So. 2d 694 (Fla.
4th DCA 2007)); see also State v. Betz, 815 So. 2d 627, 633 (Fla.
2002) (“As the odor of previously burnt marijuana certainly
warranted a belief that an offense had been committed, this
unquestionably provided the police officers on the scene probable
cause to search the passenger compartment of the respondent’s
vehicle.”). But, he contends, those cases became irrelevant after
Florida authorized medical marijuana. In other words, he argues,
while the officer’s “search based on the odor of marijuana was
constitutional prior to the enactment of [§ 381.986, Fla. Stat.], now
that medical marijuana is legal, it is no longer a sufficient basis for
probable cause.” Init. Br. at 7. He does not argue that he is a
medical-marijuana user; his argument is that the smell alone is no
longer enough since someone might be a medical-marijuana user.

There are several problems with this argument. First, as the
State notes, at the time of the stop, Florida’s medical-marijuana
laws did not authorize smokable marijuana, see § 381.986(1)(j)(2),
Fla. Stat. (2017) (excluding from “medical use” the “use, or
administration of marijuana in a form for smoking”), and the
officers smelled burnt marijuana. Second, Florida law did not
allow use in “a vehicle” other than “for low-THC cannabis.” Id.
§ 381.986(1)(j)(5)(b). Third, although Florida law does not
criminalize all use of medical marijuana, possession of marijuana
remains a crime under federal law. See 21 U.S.C. § 812(c); see also
Gonzales v. Raich, 545 U.S. 1, 27 (2005) (noting that federal
controlled substance act “designates marijuana as contraband for
any purpose; in fact, by characterizing marijuana as a Schedule I
drug, Congress expressly found that the drug has no acceptable
medical uses”). Fourth, even if smoking marijuana were legal
altogether, the officers would have had probable cause based on
the fact that Johnson was operating a car. See § 316.193(1)(a), Fla.
Stat. (criminalizing driving under the influence of drugs).

Finally, even putting all of this aside, the possibility that a
driver might be a medical-marijuana user would not automatically
defeat probable cause. The probable cause standard, after all, is a
“practical and common-sensical standard.” Florida v. Harris, 568
U.S. 237, 244 (2013). It is enough if there is “the kind of ‘fair
probability’ on which ‘reasonable and prudent people, not legal

3

technicians, act.” Id. (some marks omitted). Here, we cannot say
that it would be unreasonable for an officer to conclude there is a
fair probability that someone driving around at 2:00 a.m., smelling
of marijuana, is acting unlawfully. And this is true whether or not
Florida law allows the medical use of marijuana in some
circumstances.

In short, Johnson has not shown that the trial court’s order
denying suppression—an order that comes to us “clothed with a
presumption of correctness,” Terry v. State, 668 So. 2d 954, 958
(Fla.1996)—was wrong.

AFFIRMED.
WETHERELL, WINOKUR, and M.K. THOMAS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Andy Thomas, Public Defender, and Megan Long, Assistant Public
Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Damaris E. Reynolds and
Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for
Appellee.

Grow House Video of the Day - Underground Growhouse

Florida Grow House Defense Attorney presents this rather unusual underground growhouse. We recall there was an underground grow house bust in Tampa, Florida, but this video is from Levy County, Florida near Gainesville, Florida.



Grow House Busted? Call a Board Certified Criminal Defense Expert Toll Free 1-877-793-9290 .

Video From Inside a Legal Florida Medical Marijuana Growhouse

Florida Medical Marijuana Growhouse Video

Video From Inside a Legal Florida Medical Marijuana Growhouse

We have just obtained Video From Inside a Legal Florida Medical Marijuana Growhouse near Tallahassee, Florida.

Map of Medical Marijuana Dispensary in Tampa, Florida

We have also uncovered the location of one of Florida'a first retail locations for dispensing Medical marijuana. They will dispense Calming CBD Oil with natural almond and mint extracts, Calming CBD Spray with natural Florida orange extract, and Calming Topical Lotion with natural lavender & eucalyptus extract. It is operated by Surterra. The video above was shot at a Surterra growhouse. Here is the location of the Surterra Wellness Center homeopathic pharmacy we found at  2558 E Fowler Ave, Tampa, FL 33612.

Surterra Wellness Center

2558 E Fowler Ave, Tampa, FL 33612

Source: https://www.tallahassee.com/story/news/2016/12/21/state-awards-another-marijuana-license/95710386/

Previous Growhouse Videos

Here are links to our previous growhouse videos. Here is a page that has more maps and videos of marijuana growing operations.

Growhouse Busted in Winter Haven, Florida - Video From the Inside

www.drug2go.com/2016/06/growhouse-busted-in-winter-haven-florida.html

 Rating: 5 - ‎Review by Google+ User

Here is some video from inside the otherwise unremarkable suburban home, a map of 124 Elliott Ln, Winter Haven, FL 33884 and here is the ...

Grow House Video of the Day - Underground Growhouse

www.drug2go.com/2011/02/grow-house-video-of-day-underground.html

 Rating: 5 - ‎Review by Google+ User

Feb 22, 2011 - We recall there was an underground grow house bust in Tampa, Florida, but this video is from Levy County, Florida near Gainesville, Florida.