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If the pungent aroma of the grass emerges from your ride, the South Florida cops usually have the green light to search your car.
But now that marijuana for medical purposes is allowed in Florida and that hemp has a similar smell, a man in Miami wonders if the cops have the right to search his truck based solely on odors.
The novel's defense is used by Victor Chavez, who was found hidden in a marijuana truck in southwestern Miami-Dade last year. His lawyer said the police violated his constitutional right against an illegal search and seizure.
"The legalization of marijuana for a growing number of Floridians and businesses means that the smell of marijuana per se is no longer a sign of crime in Florida," wrote in his petition the Miami-Dade public defender, Fan Li.
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The legal battle comes as voters from various states across the country have relaxed their marijuana laws and Florida lawmakers seem ready to accept marijuana for smokable medical purposes. Judge Alan Fine of Miami-Dade will consider Chavez's request at a hearing next month.
But Chavez, 24, could have a tough battle. The supreme courts of states such as Arizona and Washington State have ruled that the smell of this plant is a sufficient "probable cause" for police to search a car, that marijuana for medical purposes is legal or not.
"The possession and use of marijuana in public vehicles has not been decriminalized in Florida. Therefore, the smell of marijuana remains the proof of a crime and gives the probable motive for conducting a search, "wrote Miami-Dade Attorney Jessica Underwood.
States began approving marijuana laws for medical purposes in the mid-1990s and today, 33 of them have approved programs. Ten other states have ushered in marijuana for recreational purposes, although federal law still prohibits it.
Detecting the smell of marijuana, especially around cars, has long been a powerful tool for law enforcement.
"In most states, marijuana is allowed for lawful purposes. This makes the "probable cause" much more complicated, "said Sam Kamin, professor of law and marijuana policy at the University of Denver.
In 2014, the Florida legislature approved the Compassionate Medical Cannabis Act, which allowed limited use of certain strains of marijuana to treat debilitating diseases such as epilepsy and cancer .
Florida voters overwhelmingly approved in 2016 a constitutional amendment to expand the use of marijuana for medical purposes. But lawmakers have limited access to the drug to pills, oils, food products and vapors – without smoking. New Governor Ron DeSantis, however, has urged the Legislature to allow smoking of marijuana for medical purposes, and elected leaders seem ready to quickly change the law.
Marijuana problems for medical purposes have arisen sporadically in South Florida criminal courts.
In 2015, a Miami-Dade man claimed that he owned an illegal indoor grow house solely to help his wife with cancer. He lost at the trial. Also that year, a Broward jury acquitted a Hollywood man who had stated that he was growing marijuana to treat his disabling anxiety.
In November 2017, despite the objections of prosecutors, a Miami-Dade judge allowed a killer with schizophrenia to consume marijuana for medical purposes while on probation.
Legal disputes over whether the smell of marijuana is sufficient to allow the cops to search somebody are not unusual for states with nascent legalization programs. This was the case in Washington, one of the first states to legalize marijuana for medical purposes in the 1990s.
"At first, when marijuana laws for medical purposes were less well recognized, many lawyers raised these charges," said Todd Maybrown, a Seattle lawyer who had won a first case on the issue.
But in 2010, the Washington Supreme Court ruled that Stevens County agents had probable reasons to search the home of a man who claimed to be qualified for marijuana for medical purposes and who had been operated on. Inside his home.
Even for states that have approved marijuana for recreational purposes, the probable cause is not resolved.
The Colorado Supreme Court is currently considering whether the police have legally deployed a drug sniffer dog, trained to detect marijuana, on a car in which methamphetamine has been found.
"We passed a recreation law seven years ago and we are still implementing it," said Kamin, a law professor at the University of Denver.
In the Miami-Dade case, Chavez does not claim to have a valid marijuana card for medical purposes, but claims that the search was still illegal.
Chavez is charged with possession of cannabis for the purpose of selling or delivering, and possession of cannabis of more than 20 grams. He is also charged with possession of cocaine.
He was arrested on May 31, 2018, after a police sergeant saw his van parked in southwestern Miami-Dade and "clogged the roadway".
About half an hour later, two other police officers saw the same truck parked on the other side of the street, with the exception of Chavez who was inside. He "started shaking, bowed his head" and tried to get away, police said.
It was at this time that Miami-Dade police officers Jacqueline Diaz and Christine Marte "smelled a strong smell of marijuana emanating from the truck."
On June 28, 2016, Wes Conner, Head of Culture at Surterra Therapeutics, presents the fully developed flower of one of his marijuana plants at his plant located in North Florida, a suburb of Tallahassee, Florida .
Joe Rondone AP file
They ordered Chavez out of the truck and found a small bag of cocaine in his pocket and an eight-gallon Ziplock bag stuffed with marijuana in a checkered bag.
His lawyer, Li, asks the judge to delete the results of the search, which would essentially condemn the prosecution's case.
According to Li, for example, the search was illegal because Florida had authorized a pilot project on the production of hemp, a related plant that does not have the same potent concentration of THC, the active chemical that provides users with a high level of . Hemp can be used as an industrial product in clothing, shoes and even insulation.
No rules limit the transportation of hemp – and the smell of the plant is identical to that of cannabis, Li wrote.
And when it comes to marijuana for medical purposes, enough people are allowed to use it – more than 170,000 in January – so police officers can not claim that their only smell is evidence of a crime. said the defense.
However, Chavez was not one of those people, wrote the Atwood attorney.
"Marijuana was not in a form that the defendant could legally possess, did not meet the legal requirements for packaging and exceeded a quantity that could be prescribed by a doctor," she wrote. .
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