Medical Marijuana, Legal Hemp and Your Right to Privacy in a Vehicle
With the legalization of medical marijuana through a ballot initiative in 2016 and the legalization of commercial hemp on July 1, 2019, challenges regarding vehicle privacy are arising. In the case of a home search, a warrant that has been reviewed and signed by a judge. Your right to privacy in a vehicle is very different, and is changing with continued legalization of marijuana.
When can an officer detain a vehicle?
Prior to the legalization of medical and recreational marijuana, an officer could detain and search a vehicle based on the alleged odor of marijuana or by the alert of a police dog trained to detect illegal drugs. The 4th Amendment to the U.S. Constitution and Article I, Section 12 of the Florida Constitution have been interpreted by Florida courts to only require probable cause to detain you and search your vehicle. An alert by a trained dog or the mere odor of marijuana noticed by an officer has been found to be sufficient to establish probable cause for a detention and search.
How are vehicle search requirements changing?
Because hemp and medical marijuana are now legal in Florida, an alert from a dog is likely no longer sufficient to establish probable cause to detain and search a vehicle. State Attorneys and law enforcement around the state recognize that they now have a problem due to the fact that legal hemp cannot be distinguished from illegal marijuana by their dogs, and the odor is also indistinguishable by officers. Dogs have been trained to alert to several types of illegal drugs but cannot signal to their handlers what drug they are detecting. Because of the changes in the law, it is likely that dogs trained to detect marijuana will eventually have to be replaced with dogs that do not alert to marijuana or hemp. This is already happening in states that have legalized recreational forms of marijuana, like California.
North Central Florida’s changes in vehicle search requirements
Every day more law enforcement agencies and State Attorneys are issuing memorandums to inform law enforcement and prosecutors that the odor of marijuana or an alert by dog alone is no longer sufficient to detain and search a vehicle. Currently, the State Attorney’s Office for the Eighth Judicial Circuit, which makes up Alachua, Baker, Bradford, Gilchrist, Levy and Union Counties, is working on a memorandum on this issue. Some local law enforcement agencies have already issued memoranda that mirror previously published memorandums from other State Attorneys in Florida on this issue.
It should be noted that the memorandums currently available for review suggest that a detention and search can proceed if the officer, in addition to the odor or alert, finds some other behavior indicating possible illegal activity such as nervous actions or movements, impairment of the driver and/or admissions by a driver or passenger.
Should you have questions about the legality of marijuana or are accused of a crime based on a search of your vehicle, the attorneys at Avera & Smith are here to help. As experienced Gainesville lawyers, we work to ensure your rights are upheld. Contact us today for a free consultation.