Hemp is identical to marijuana, minus the THC, but dogs and cops can't smell a difference. That means Florida prosecutors are instructing police to change when they can search people for probable cause, and some are dropping marijuana charges wholesale.

A new hemp law in Florida has forced prosecutors across the state to toss marijuana convictions, forced police to rethink when they can search suspects and may lead to the retirements of some drug-sniffing dogs.

The law, which made the possession of hemp legal on July 1, has forced law enforcement agencies to adapt to a substance that is nearly identical to cannabis, albeit without the psychoactive THC that makes marijuana alluring.

The Florida Times-Union reached out to all 20 state attorneys to ask them how the new hemp law will affect probable-cause searches, prosecutions and related issues. Twelve responded. All said this will affect the prosecution of marijuana in one way or another, and seven explicitly said this changes the probable-cause standard for police who have previously used the sight and smell of marijuana to search potential suspects.

Some also said this means that drug-sniffing dogs, who have been trained to bark when they smell any drug whether it’s marijuana or something more serious, are now obsolete.

“The dogs are done,” said State Attorney Jeff Siegmeister, who runs the prosecutors offices in the Third Judicial Circuit in seven rural North Florida counties. “If they’re pot-trained, I don’t know how we can ever re-certify them. Unless they’re trained in the future in a different way, in my area, every dog is going to be retired.”

But Florida Sheriff's Association President Bob Gaultieri, who is also the Pinellas sheriff, said he doesn't expect to retire dogs in his area. Still he, like the prosecutors across the state who answered, admitted dogs can't distinguish between marijuana, hemp or harder drugs like heroin.

"The dog doesn’t put up one finger and say, 'cocaine,' two fingers and say, 'heroin,' and three fingers and say, 'marijuana,'" Gaultieri said. "We had a very, very hard bright line up until this point that if a cop walks up to a car and you smell marijuana, well no matter what it was, any amount of THC is illegal, so if you smelled it, that gave you probable cause. … You had a hard bright line, period end of story. Now that bright line isn’t bright any more. Now that bright line is something less than that. Now if you walk up to a car and you smell marijuana, you have to conduct an investigation, and that along with other things may give you probable cause."

The Jacksonville Sheriff’s Office said through a spokeswoman that the office would not be retiring drug-sniffing dogs. “They are still used every day!” wrote Officer Melissa Bujeda in an email. She said the office would still use dogs since odor can be one of several factors that lead to probable cause under a new policy written by Assistant State Attorney Andy Kantor.

Kantor wrote a list of 20 questions for officers to determine if they’ve formed probable cause.

“Hemp and cannabis look, feel and smell the same,” he wrote. “Thus, probable cause may not be developed solely on the smell. Additionally, the Jacksonville Sheriff’s Office (JSO) does not currently have a field test that can determine the percentage of THC.”

Most prosecutors say the new law makes prosecutions of marijuana unlikely. No state lab can currently test the amount of THC in a sample to determine if it's marijuana or hemp, and several prosecutors' offices said they'd have to consider the cost of sending alleged marijuana to an out-of-state lab for testing before deciding to prosecute.

In Gainesville, prosecutors are dropping all cannabis charges. In other circuits, prosecutors say they will continue to review each case individually, with some like Tallahassee saying they will try "a variety of arguments" before the courts, and in other places like Orlando and the Treasure Coast say they will wait until after they receive lab tests before filing charges.

Perhaps more importantly, the law also limits what evidence prosecutors are able to use in other cases where the smell of marijuana formed probable cause.

For example, before the law, if a police officer saw and smelled marijuana in a vehicle, then he or she could search the vehicle. Sometimes that would lead the officer to find a gun, which could lead to a felony charge. But if the smell of marijuana isn’t enough to form probable cause — which is what seven state attorneys said — then the gun can’t be used as evidence.

Those state attorneys said officers must use an “odor-plus” standard that relies on the apparent smell of marijuana in addition to the officers’ observations before searching potential suspects. This could also create new concerns if probable cause is being decided by an officers’ subjective opinions.

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In the Eighth Judicial Circuit, which covers Gainesville and five surrounding rural counties, State Attorney Bill Cervone told his prosecutors to drop all cannabis cases since July 1, “unless the quantity or offender’s background warrant them coming to me or my Chief Assistant for permission to do otherwise. No one has brought me any such case yet.”

Siegmeister said he’s still trying to determine what probable-cause standard officers in his area should adopt. He is somewhat of an outlier among prosecutors in that he said he's not convinced the smell of burning hemp is actually the same as the smell of burning marijuana, and he thinks officers may still have probable cause to search based on smell alone. He said he is going to visit some hemp farms with officers to compare the smell of hemp versus marijuana.

“Even though I’ve seen reporting that hemp looks like cannabis sativa, but I’m not convinced the overwhelming smell of green marijuana can be confused for hemp. Not that I’ve had a lot of personal experience, but as law enforcement, I’ve been at festivals.”

The Miami-Dade State Attorney’s Office also said it was still working on this issue, though the Miami-Dade Police Department said it was using an odor-plus standard. The Seventh Judicial Circuit, which covers St. Johns, Putnam, Flagler and Volusia counties, is also still developing its policies, a spokesman said.

In Orange and Osceola counties, the Ninth Judicial Circuit said it “does not advise law enforcement on how to develop probable cause.”

Tallahassee State Attorney Jack Campbell has taken somewhat of a lead position on the issue, chastising the Florida Legislature for the change in law and writing to law-enforcement agencies that “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.”

Campbell said that the Florida Department of Law Enforcement is trying to figure out how to allow testing that would distinguish the amount of THC in a sample.

Without lab testing, prosecutors said they can’t prosecute marijuana possession cases. Even if labs get certified to do this kind of testing, most the offices said they will have to consider the cost of the testing before deciding to go forward with a case.

"The State Attorney's Office will need a laboratory test result before filing formal charges in a case,” said Bruce Colton in the 19th Judicial Circuit, which covers Martin, St. Lucie, Okeechobee and Indian River counties. “Due to speedy trial considerations, officers should not make a probable cause arrest for a cannabis-related offense until obtaining a laboratory result. Agencies should also consider that the cost of testing may be prohibitive. Likewise, the cost of obtaining witnesses from an out of state laboratory may be prohibitive."

In Tampa, State Attorney Andrew Warren said they haven’t seen arrests that needed to be dropped, but cost will be a factor as his office decides whether to continue prosecuting marijuana sale and trafficking cases.

Siegmeister said he doesn’t think the cost of getting a laboratory test is going to be worth it for a prosecution, and he doubts a jury would convict of marijuana possession.

“I would not let my people go to a jury for smoking a joint in state park because the jury looks at it and says we came here on a Friday so you could convict two kids for smoking a joint in state park? I’m a realist.”

Still, he said, “I hope these interviews aren’t telling people to run out and get pot because you will not be prosecuted.

“They run out and buy pot at their very own risk. Just because I can’t do it now doesn’t mean I’m not creative.”

Andrew Pantazi: (904) 359-4310