The Brave New World Of Marijuana Possession Cases In Florida
Over the last several years, a marijuana legalization wave has crashed ashore in the United States. But this wave hasn’t directly affected most Florida residents. A few localities, including Tampa, Key West, Orlando, Miami-Dade County, and Sarasota, have decriminalized marijuana possession. But a statewide prohibition remains in effect, with the exception of some medicinal uses.
Nevertheless, the indirect effects of this legalization wave are felt throughout the Sunshine State. That includes the parts of Hillsborough County and other parts of the Tampa Bay area that haven’t decriminalized marijuana. In many cases, a Tampa criminal defense lawyer can use these effects to beat POM (possession of marijuana) cases in court. These indirect impacts could affect many other criminal cases as well, especially if officers used a controversial police stop as a basis to arrest the defendant.
Marijuana and Hemp
Under state law, marijuana is illegal for most purposes. However, also under state law, hemp is legal for almost all purposes. In terms of their physical characteristics, these two substances are identical. They look alike, smell alike, and are otherwise exactly the same as each other.
The state has the burden of proof in criminal court. This burden applies to every element of every criminal defense, including whether the substance at issue was illegal (marijuana) or legal (hemp).
As mentioned, no one, not even a scientist, can tell the difference between hemp and marijuana based on physical appearance alone. An expensive THC content test is the only way to establish what’s what. Prosecutors often don’t order this test, especially if the other evidence of possession is weak.
In addition to the nature of the substance, prosecutors must prove the defendant knew about the substance and had control over it. These things are often difficult to prove, especially if officers found marijuana (or a substance which appeared to be marijuana) under the driver’s seat and the defendant was in the passenger-side rear seat.
Procedural issues could come up as well. Police cannot seize physical evidence unless they had a valid warrant or a narrow search warrant exception applied. If a Tampa criminal defense lawyer excludes the substance, the prosecution usually cannot go forward.
“I Smelled Marijuana”
For decades, officers have used this line to justify aggressive searches and other police tactics. Since the odor dissipates, there was basically no way to confirm or deny the officer’s statement. It was the officer’s word against the defendant’s word.
Now, hemp is legal and, as mentioned, when hemp burns, it smells exactly like marijuana. So, the signature odor isn’t evidence of criminal activity. The Supreme Court has yet to definitively rule if the “I smelled marijuana” excuse will hold up in court. But, it’s certain that this excuse is on very shaky legal ground.
That’s not only because of the changing nature of hemp/marijuana laws. It’s also because of the changing public attitude toward police officers. Back in the day, cops got free pancakes at Denny’s. Now, for the most part, they pay for their own pancakes at Denny’s. So, in court, many jurors no longer accept a police officer’s word for it.
Additionally, there may be some way to refute the “I smelled marijuana” story. If one officer smelled marijuana and another one didn’t, one of them is incorrect. Additionally, marijuana smoke clings to hair and clothes. If booking officers didn’t smell marijuana, there’s a lower likelihood that the arresting officer smelled marijuana.
Reach Out to a Diligent Hillsborough County Attorney
A criminal charge is not the same thing as a criminal conviction. For a free consultation with an experienced criminal defense lawyer in Tampa, contact the OA Law Firm. We routinely handle matters in Pinellas County and nearby jurisdictions.