Judges on Florida’s 2nd District Court of Appeals have reversed a marijuana trafficking conviction because the prosecution failed to take adequate steps to distinguish whether the defendant possessed marijuana or hemp.
The defendant had been convicted of marijuana trafficking after he was intercepted at Tampa International Airport with a duffle bag containing 50 vacuum-sealed bags of a “leafy green” substance. A canine had alerted to the duffle bag. Law enforcement later provided one of the 50 bags for a chemical analysis. It tested positive for cannabis.
The defendant appealed his conviction, arguing that he believed the packages contained hemp products, which are legal federally and in Florida. The court agreed, opining that there was no way to determine whether the defendant was carrying hemp or marijuana absent analytical testing of every bag.
It determined: “Legal hemp and illegal cannabis are indistinguishable by appearance, texture, and odor. … 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.”
The case is Campbell v. Florida.