Is "Sniff and Search" dead in Florida? by Josh Navarro published July 17, 2019
Updated: Jan 3
We’ve all been there- driving along a busy street, eyes on the road, thoughts on our destination, minding our own business, when suddenly blue and red police lights in the rearview trigger an unmistakable, gut-wrenching feeling of unease. With the advent of camera phones and a shift in public perception toward policing, the general populace has become well aware of the questionable tactics used by police in circumventing citizens’ constitutional rights. It is no secret that police routinely abuse their power and impose their will over citizens, and one way is by curtailing our 4th Amendment right against unreasonable searches and seizures by means of intimidation, threats, lies, and more.
Among the myriad of tactics used, none has been more favored by cops than the so-called “sniff and search” widely employed by officers to search your car without probable cause, consent, or a warrant. In such a situation, an officer merely has to allege that he or she “smelled the odor of marijuana” to obtain probable cause to search a vehicle; even over a citizen’s objection. It’s a difficult allegation to disprove by the citizen, and an easy one to make by the officer to effectuate a warrantless search. Officers routinely use “sniff and search” as a pretext to stop and search a vehicle for any reason: ulterior personal motives, racial profiling, quota policies, or just plain harassment. Police employ “sniff and search” so commonly, that many times absolutely nothing or completely unrelated contraband is found in the citizen’s car.
However, with recent changes in both federal and state cannabis laws, the days of “sniff and search” may be numbered for police in Florida. The Agriculture Act of 2014 (7 U.S.C s 5940), also known as the “Farm Bill,” first made cultivation of hemp legal for certain research circumstances across the United States. The 2018 Farm Bill expanded the Agriculture Act to remove all prohibitions on cultivation of industrial hemp that have been in effect since 1937, and allowed states to create their own hemp programs. On July 1st of this year, the Florida Legislature did just that, and approved a bill that allows the Department of Agriculture to implement Florida’s hemp program. Hemp that is under 0.3% THC is now legal in Florida.
Although a blessing to the farming industry in the state, complications now arise for police with regards to enforcement of criminal laws against hemp’s “cousin” – marijuana. Hemp is actually a subspecies variant of cannabis sativa L, and as such, the two plants share a lot of similarities. Aside from near identical appearance to an untrained eye, cannabis odor is indistinguishable from the odor of hemp to humans and even trained K-9 police dogs (whether burned or not). Combine this fact with Florida’s medical marijuana program created via constitutional amendment in 2016, and police now have massive hurdles to overcome in enforcing antiquated antidrug policies.
The overarching effect of the 2018 Farm Bill on the criminal justice system is hard for prosecutors to ignore, and some have already taken a proactive approach to remedy the situation. Just last week, Palm Beach State Attorney Dave Aronberg sent out a county-wide memorandum explicitly stating that smell alone is no longer enough to constitute probable cause to conduct a warrantless search. The memo also emphasized the importance of officers’ duty to legally differentiate between hemp (less than 0.3% THC) and marijuana (over 0.3% THC). This further compounds problems for law enforcement, as on-site testing kits have been notoriously unreliable and inaccurate.
Although Palm Beach is the only county in Florida to take such a concrete stance on the issue thus far, the underlying rationale remains true and applies to the entire state. Public Defender Offices and private defense attorneys across the state have been circulating template motions to suppress for all evidence gathered under the “sniff and search” method. Although many State Attorneys may be reluctant to follow Palm Beach’s lead, policies and procedures must evolve statewide in the face of overwhelming legal challenges.
Do not hesitate to contact us at Davis & Davis if you are in need of effective legal representation.