08/13/2024
LEGAL UPDATE; SMELL OF CANNABIS ALONE CANNOT SUPPORT DETENTION BY POLICE. The smell of cannabis cannot on its own support a detention. See Kilburn, 297 So. 3d at 675; see also Sawyer v. State, 842 So. 2d 310, 311 (Fla. 5th DCA 2003) (requiring officers to have reasonable belief that item is contraband prior to its seizure under “plain view” doctrine); Smith v. State, 95 So. 3d 966, 969 (Fla. 1st DCA 2012) (finding investigatory detention invalid and stating “the incriminating nature of the pills was not immediately apparent to the deputy such that he had probable cause to seize the bag under the plain-view doctrine” . Citation omitted. Cannabis is legal in Florida when either it is dispensed from a medical ma*****na treatment center for medical use, see § 381.986(g), Fla. Stat., or it is “h**p,” which has a Delta-9 THC concentration not exceeding 0.3 percent on a dry-weight basis. See § 581.217(3)(e), Fla. Stat.; see also Hatcher v. State, 342 So. 3d 807, 811 n.3 (Fla. 1st DCA 2022) (explaining difference between h**p and illegal cannabis is the “psychoactive component”)In December 2018, federal law changed to exclude h**p from the federal definition of ma*****na. See 21 U.S.C. § 802(16)(B) (2018). This change also authorized the creation of a nationwide regulatory framework to regulate the production of h**p. See 7 U.S.C. § 1639r. (2018). In July 2019, the Florida Legislature enacted the “State h**p program.” § 581.217, Fla. Stat. (2019). Under section 581.217(2)(b), Florida Statutes (2021), “[h]emp-derived cannabinoids, including, but not limited to, cannabidiol, are not controlled substances or adulterants.” Included in both the federal and Florida definition, “h**p” is the plant Cannabis sativa L. and any part of that plant, that has a total delta-9-tetrahydrocannabinol (“Detla-9 THC”) concentration that does not exceed 0.3 percent on a dry-weight basis. See id. § 581.217(3)(e); 7 U.S.C. § 1639 (2021) Be careful out there!
