Marijuana possession cases will no longer be prosecuted in Tallahassee, Florida and the surrounding area, according to a letter to law enforcement agencies from the State Attorney. The action was taken in response to the legalization of hemp in Florida earlier this year and at the federal level with the passage of the 2018 Farm Bill.

In the letter from Jack Campbell, the State Attorney for Florida’s 2nd Judicial Circuit, law enforcement agencies were informed that the difficulty in easily differentiating hemp and marijuana led to the decision.

“Hemp products look and smell exactly like marijuana products,” Cambell told local media.

Marijuana or Hemp?

Campbell noted that there are now CBD gummies, hemp pre-rolls, and other products that are now legal being sold in Florida. And while they may seem to be made from marijuana based on their smell or appearance, there isn’t a way to tell without sophisticated laboratory analysis.

“It’s the same thing as if somebody looked at a glass of alcohol. You might be able to smell and tell that there’s alcohol, but you couldn’t look or smell and say what the proof of it is,” said Campbell.

Currently, both private and government labs in Florida use lab tests that only indicate the presence of THC, not the concentration of the cannabinoid. Field tests to identify marijuana that are commonly used by law enforcement officers face similar limitations. With hemp products containing less than 0.3% THC now legal, prosecutors are no longer able to bring charges based solely on the presence of THC in a sample.

“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,” Campbell wrote in the letter.

Because of the difficulty, Campbell said that his office would no longer prosecute marijuana possession cases until “such time that a scientifically proven test that can be introduced into evidence can distinguish illegal marijuana from legal hemp.”

No More Search Warrants Based on Smell

Campbell also informed all police departments and sheriff’s departments in the 2nd Judicial Circuit that his office would no longer authorize search warrants based on field tests for THC, the smell of marijuana, or an alert from drug-detecting dogs.

“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,” Campbell wrote.

Campbell acknowledged that the new law would present challenges to law enforcement and said that he expected different agencies could adopt different approaches to the enforcement of marijuana laws.

“I think you’re going to have some agencies that are going to continue to arrest and seize. I think you are going to have some that are going to be concerned about possible wrongful arrest,” said Campbell.