On July 1, Florida seems to have, at least temporarily, decriminalized marijuana statewide. That day, the state bill legalizing the sale and possession of hemp went into effect — and, almost immediately, cops and prosecutors realized that the newly legal hemp looks, smells, and smokes just like actual weed. The only way to tell the difference is to test the substance in a lab for tetrahydrocannabinol (THC) content, a test most local crime laboratories still aren't capable of doing.
As such, on August 9, Miami-Dade State Attorney Katherine Fernandez Rundle sent a memo to the county's 35 police departments stating her office would no longer be prosecuting low-level marijuana cases until further notice.
But according to jail records reviewed by New Times, Miami-area cops kept arresting people for minor pot possession anyway. From July 1 to November 23, a total of 391 people were arrested for misdemeanor cannabis possession, according to the latest county jail data. Of those, at least 141 defendants were arrested after Rundle's memo was circulated. While low-level weed arrests have tapered off slightly since August, officers were still hauling people to jail for misdemeanor cannabis possession as recently as last week.
Most of those arrested after Rundle's memo were hit with weed charges amid other primary allegations. But of the 141 people charged with weed possession, 47 had marijuana listed as the primary charge for their arrest. Of those 47 people, 12 were charged with nothing other than possessing fewer than 20 grams of weed.
After New Times showed the data to Miami-Dade's chief public defender, Carlos Martinez, he cautioned local cops to follow Rundle's memo to the letter, lest they wind up in court themselves.
"Individuals should not be arrested for misdemeanor marijuana possession because the prosecutor's office has stated they will not be prosecuting," Martinez said. "I imagine that, if an arrested individual sues, it could be costly for the departments who are arresting on charges that will not hold up in court."
Reached via email, Ed Griffith, a spokesman for the Miami-Dade State Attorney's Office, said it is not the office's job to remind cops that it is no longer prosecuting small-time weed cases.
"The State Attorney and the State Attorney’s Office have no legal authority to direct any of Miami-Dade's 35 police agencies to do anything," Griffith said. "Those that do have the legal authority to direct a municipal police department to do something are the municipal governments that oversee the departments. I suspect your question would be most appropriately directed to those governmental entities. Acting appropriately, we can indicate to police and police departments (as was in the memo) what legal standards and issues may impact our legal ability to make formal charges in court."
Griffith did not respond to a follow-up email asking if Rundle's office had sent any additional reminders to police departments.
Though the arrests have been scattered across Dade County, many were made in Miami Gardens, Hialeah, and the City of Miami. The arrests appear to overwhelmingly impact people of color.
On October 10, for example, Miami Gardens Police Officer J. Ciceron says he watched a 20-year-old black man engage in a "hand to hand transaction" with another man standing on the corner of NW 17th Avenue and NW 155th Street. Ciceron says he suspected someone had just bought drugs, so he followed the alleged buyer as the man got into his car and drove for a few blocks. He says he then watched the driver run a stop sign and pulled over the car. Ciceron says he saw the defendant in the back seat, searched the car, and found less than 20 grams of weed.
"The defendant spontaneously said he left his mother's house and went to the dope man to buy drugs thats it [sic]," Ciceron wrote.
State records show the defendant's charges — possession of less than 20 grams of weed and attempting to purchase marijuana — were dropped November 4, but not before he paid a $1,000 bond to leave jail.
In a different incident November 3, Aventura Officer Jeffrey Burns says he was driving through the garage at Aventura Mall when he spotted a white Dodge Charger sitting in a handicapped spot with no permit displayed. As he approached, he says a 26-year-old black man got out of the car and began walking away while leaving the car running. As the cop walked to catch up, he says, the man turned around and asked if the cop was there for the car. While talking, the cop says he smelled weed. Burns says the man consented to a search, which turned up a green container with roughly eight grams of weed inside, a few burnt joint roaches, and some rolling papers.
"Def does not have a medical marijuana card and stated the product was not hemp," Burns wrote in an arrest affidavit. Burns carted the man to jail on charges of misdemeanor cannabis possession and possession of drug paraphernalia. Prosecutors dropped the man's case later that same day.
Those arrests occurred despite the fact that police can legally issue a $100 civil citation for misdemeanor weed possession instead. But in 2018, New Times found low-level marijuana arrests actually went up after the county decriminalized cannabis possession in 2015.
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Multiple departments failed to issue any weed tickets at all. Miami-Dade Police did start a citation program, but cops gave most of the tickets to white people. After New Times' story, the Miami Police Department promised to start issuing weed citations, but records show MPD is among the multiple departments that have arrested people for small-time pot possession after Rundle's memo went out.
Miami-Dade records suggest the vast majority of low-level pot charges, especially those filed after August 9, were later dismissed. But that doesn't mean the charges are nothing to worry about. Defendants are still arrested, carted to jail, and left looking for legal representation. Even a non-prosecutable arrest for marijuana possession creates a permanent, searchable public record that could impact someone's ability to find or keep a job. Low-level drug charges can also impact someone's immigration status. And, as New Times wrote last month, more than 60 percent of people still pass through Miami-Dade's misdemeanor court system with no public defender present to provide legal advice.
The arrests are also a gigantic waste of police time. Cops are arresting nonviolent offenders, filling out paperwork, and transporting people to jail, all for charges that prosecutors have explicitly said they will drop. In the meantime, Miami-area officers are horrible at solving actual crimes — Florida Department of Law Enforcement data shows local cops solved just 16.8 percent of reported crimes in 2018, the lowest rate in any of Florida's 67 counties.
Florida's hemp issues are not unique. As Salon wrote in September, 47 states have now legalized hemp, but only 11 have legalized recreational marijuana use. Currently, the only way to differentiate between cannabis and smokeable hemp is by testing for THC levels — a test that is costly, comparatively time-consuming, and not widely conducted in most state or local crime labs. On August 1, for example, the Ohio Bureau of Criminal Investigation issued a statewide memo saying it currently does not have the tools to differentiate between illegal pot and legal hemp. Some cannabis advocates have suggested legalizing hemp could be a backdoor to legalizing recreational weed nationwide.