FLCAN says, “Know your rights.”

The Florida Cannabis Action Network’s 3rd Branch Judiciary Committee is dedicated to exploring effective means of litigating for our rights in courts, as well as educating our members concerning legal rulings from the Courts.

A recent Appellate Court ruling created more protections for you and impacts your right to own and smoke Cannabis. Like any muscle, flexing your legal knowledge takes practice, but developing a legal muscle memory benefits you in the long run. The good news is smell and appearance is not enough to show probable cause.

On March 26, 2025, in Campbell v State of FL, No. 2D2023-0651, 2nd DCA, the Appellate Court made some insightful statements in their decision. This important decision included this excerpt:

 “Until recently, however, all forms of cannabis were illegal—neither medical marijuana nor hemp were excluded from the definition of cannabis. Thus, any green, leafy substance seized that had the well-known characteristic appearance and smell of cannabis was illegal, and the unique appearance, texture, and odor of cannabis was susceptible to being readily identifiable by experienced law enforcement officers. See Turner, 388 So. 2d at 257 

(“[N]umerous cases hold that marijuana is not difficult to characterize without chemical analysis and that testimony of officers who have had experience searching for and identifying marijuana is sufficient.” (quoting State v. Otswald, 591 P.2d 646, 652 (Mont. 1979)); Mishmash v. State, 423 So. 2d 446, 447 (Fla. 1st DCA 1982) (“Law enforcement officials trained in the detection of contraband have no difficulty recognizing both the smell and packaging of marijuana.”).

However, after the legalization of hemp at the federal and state levels, this is no longer the case, and Greenwade’s exception for cannabis is no longer applicable. Legal hemp and illegal cannabis are indistinguishable by appearance, texture, and odor, such that chemical testing to determine the THC content is now needed to avoid misidentification. If the THC concentration is greater than 0.3%, the substance is illegal cannabis, but if it is less than 0.3%, the substance is legal hemp. See § 581.217(3)(d)……..

Now, however, because there is an identifiable danger of misidentification between legal hemp and illegal cannabis, where the contents of multiple packages are to be considered in proving the quantity of illegal cannabis, the State can no longer rely solely on appearance and odor to extend an inference of illegal cannabis to the remaining untested packets and must chemically test each packet of green, leafy substance to meet the threshold weight required for trafficking. To hold otherwise and allow the State to rely on the identification of similar packages of a green, leafy substance by appearance and odor alone would undermine a defendant’s presumption of innocence and erroneously negate the State’s burden to prove the identity and weight of the alleged substance.” https://2dca.flcourts.gov/content/download/2449483/opinion/Opinion_2023-0651.pdf

 In “stoner language”, or “common speak”, this means an officer can no longer detain you for the common characteristics of Cannabis, without having “reasonable, articulate suspicion of” the Cannabis having more than .3% THC. Smell and appearance is not enough. They cannot determine this without testing your actual plant material, regardless of the packaging of the Cannabis, including a sandwich baggie. Learn more about probable cause and protecting yourself before a traffic stop with this video of defense attorney Mike Minardi at the FLCAN office. 

Perhaps, the best question you can ask in response to an officer asking about Cannabis/hemp in your possession might be:

“Because the appearance, texture, and odor are no longer reasonable articulable suspicion for possession of marijuana, can you cite any evidence you have that this is not hemp?” Remember, smell and appearance is not enough.

The most important thing is to preserve your presumption of innocence, which is why defense attorneys counsel clients to say nothing. Asking the golden question, “Do you have any evidence that this is not hemp?” will preserve your right to the presumption of innocence. Officers can no longer confiscate Cannabis/Hemp to test due to the language in Campbell v State. In conclusion, without evidence of another crime, you should be able to leave with your Cannabis/hemp.

We hope this helps you in your cannabis journey and look forward to sharing more rulings soon!

Benny Blanchard – Judiciary Chair
Deaf/hoh