Stopped By Law Enforcement While Transporting Hemp- What You Need to Know (Part 2 of 2)
Editor’s note: In this article, part two of a two parts series about hemp and law enforcement, Kight Law attorney Philip Snow addresses important things to know when pulled over by law enforcement while transporting hemp or a hemp-derived product. You can read part one by clicking here. Despite the 2018 Farm Bill’s removal of hemp from the federal Controlled Substances Act, many state laws and regulations prohibit, and even criminalize, the possession, use, or sale of it under certain circumstances. This post also includes a discussion of the evolving concept of probable cause as it relates to cannabis. -Rod Kight
The second installment of this two-part series covers important things to know if you are stopped by law enforcement while driving with hemp or hemp-derived products in your possession, either as a consumer or as part of your business. You can read part one, which provides general background information, by clicking here.
IF YOU ARE AN INDIVIDUAL IN POSSESSION OF HEMP OR HEMP-DERIVED PRODUCTS AND YOU ARE PULLED OVER
1. Always know what you are in possession of and know your location. The Farm Bill removed hemp and hemp derived products (including “extracts,” “cannabinoids,” and CBD) from the CSA. Most states with either industrial hemp pilot programs or hemp programs developed in line with the 2019 United States Department of Agriculture Interim Final Rule have removed hemp from their controlled substances laws as well. However, some states prohibit the possession of hemp-derived products or smokable hemp. Because of this, it is vitally important to know what you are in possession of and how the state in which you are in treats the possession of hemp or hemp-derived products.
As an added measure of precaution, keep a copy of any product label, or Certificate of Analysis for any hemp or hemp-derived product on hand with you at all times when you are in possession of these items in public places.
2. Stop the car in a safe place as quickly as possible and turn off the car. If necessary, turn on the interior light in the car. Open the window slightly.
3. Place your hands on the wheel and do not move them unless you are asked to. If you are a passenger, place your hands on the dashboard. Avoid making any sudden movements and keep your hands where law enforcement can see them. Upon request, show law enforcement your driver’s license, registration, and proof of insurance.
4. Keep in mind that generally speaking, law enforcement cannot search your vehicle without a warrant. There are a few exceptions to this rule, including the following:
a. Law enforcement can search your vehicle if you give consent.
b. Law enforcement can search your vehicle if they have probable cause to believe there is evidence of a crime in your possession.
c. Law enforcement can search your vehicle if they believes a search is necessary for their own protection (ie, if they believe you have a weapon).
d. Law enforcement can search your vehicle if you have been arrested and the search is related to that arrest (such as to search for illegal drugs).
5. Ask the officer if you are under arrest. Unfortunately, you may be arrested for a traffic violation, no matter how minor. As mentioned above, if you are under arrest, your vehicle can be impounded and then searched to inventory its contents, without a warrant and without any level of suspicion that the car contains contraband. Additionally, your person, your clothing, and your bags can also be searched with no required quantum of suspicion if you are arrested. If you are not under arrest, law enforcement needs probable cause to search the vehicle.
6. Law enforcement officers are trained to ask for consent to search a vehicle. In light of Number 5 above, you do not have to consent to a search of your vehicle. As a matter of practicality, if law enforcement has the authority to search the vehicle, they’ll do so. If they have to get your consent, it’s because they don’t have the authority to search unless you provide them consent. If they don’t believe they have the authority, they’ll ask for consent.
7. Please keep in mind the concept of probable cause is one that is evolving in light of the federal legalization of hemp and the legalization of marijuana by many states. For instance, in most states with laws removing hemp and/or marijuana from their controlled substances lists, the mere smell or odor of cannabis no longer constitutes probable cause for law enforcement to believe someone is in possession of illegal marijuana since marijuana and hemp smell the same. Botanically speaking, they are both cannabis. To that end, if law enforcement searches your vehicle without your consent and does not have any other reason to do so, you can preserve your argument that there was no probable cause to search.
Unfortunately, however, this issue has yet to be firmly established in all courts across the country. Like most legal issues, a determination of whether or not probable cause exists is determined on a case-by-case basis. If law enforcement searches a vehicle without consent the occupant can usually preserve the right to object to the search as unlawful based on a lack of probable cause. If the search was deemed to be unlawful then the evidence can often be suppressed. It is important to note that providing consent to search may not be the best idea when carrying lawful hemp. This may seem counterintuitive, but it is because lawful hemp may test “hot” (ie, exceed the THC limit of 0.3% for hemp) for a number of reasons, including the testing protocol used, the particular sample(s) used, and the when the state uses of a total THC standard for post-harvest hemp material.
This is a recent memo from the Florida Office of Agricultural Law Enforcement regarding probable cause:
8. If law enforcement officers have probable cause to believe the vehicle contains evidence of a crime or contraband, they can search the entire vehicle. A common misconception is that if you have a locked glove compartment or trunk, law enforcement officers cannot search there. This is wrong. Law enforcement are permitted to search anywhere in the vehicle they believe may contain evidence of a crime or contraband. If they suspect the vehicle contains marijuana, they are able to look anywhere it may be found, including the glove compartment, passenger compartment, trunk, and closed containers within the vehicle. Additionally, if they believe a passenger’s belongings contain evidence of a crime or contraband, they are able to search the passenger’s belongings even if there is no probable cause to believe the passenger has been involved in any wrongdoing.
9. If you are arrested for any evidence of crime or contraband in your vehicle, remain silent. You do not have to answer any questions about where you are going, where you have been, where you live, or your nationality. As mentioned in the first installment of this series, if you are arrested, you have the right to an attorney. Immediately ask law enforcement to speak with an attorney and remain silent until you speak with an attorney. Do not give explanations regarding your arrest, do not provide excuses regarding your arrest, do not speak to any cellmate regarding your arrest. Finally, do not sign anything or make any decisions without the advice of an attorney.
BACKGROUND INFORMATION REGARDING TRANSPORTING HEMP OR HEMP-DERIVED PRODUCTS BETWEEN BUSINESSES
As a preliminary matter, it is crucial to bear in mind that it is lawful to transport hemp and hemp-derived products in interstate commerce. Pursuant to the 2018 Farm Bill, the interstate transfer of industrial hemp is authorized by 7 USC § 1621 subsection 10114(b), stating, in relevant part: “No State or Indian Tribe shall prohibit the transportation or shipment of hemp or hemp products produced in accordance with subtitle G of the Agricultural Marketing Act of 1946 (AMA) (as added by section 10113) through the State or the territory of the Indian Tribe, as applicable.” This provision amends the language set forth in the AMA by prohibiting States and Indian tribes from prohibiting the interstate transportation or shipment of hemp lawfully produced under a State or Tribal plan. Moreover, this position was reinforced by the USDA Office of the General Counsel in a memorandum issued on May 28, 2019. In this memorandum, the General Counsel stated:
“After USDA publishes regulations implementing the new hemp production provisions of the 2018 Farm Bill, States and Indian tribes may not prohibit the interstate transportation or shipment of hemp lawfully produced under a State or Tribal plan or under a license issued under the USDA plan. States and Indian tribes also may not prohibit the interstate transportation or shipment of hemp lawfully produced under the 2014 Farm Bill.”
Although state laws vary, sometimes considerably, with respect to hemp and hemp products, it is absolutely clear that states and Indian tribes may not prohibit the transport of them through their borders. We have previously written about interstate hemp transport, which you can read by clicking here.
ADDITIONAL CONSIDERATIONS IF YOU ARE PULLED OVER BY LAW ENFORCEMENT WHEN TRANSPORTING HEMP OR HEMP-DERIVED PRODUCTS BETWEEN BUSINESSES
1. In addition to the considerations mentioned above, it is of the utmost importance that you keep all documentation regarding your cargo on hand with you at all times. This documentation is sometimes referred to as a “manifest” and should, at a minimum, include:
a. Shipping manifest for the cargo;
b. Certificate of analysis for all cargo, including each individual type of hemp or hemp-derived product;
c. Information and copies of all relevant licenses and/or permits for both the shipping and receiving entity. These are very important to demonstrate you are transporting lawful hemp or hemp-derived products between compliant businesses.
d. Contact information for the owner/person responsible for business operations at both the shipping and receiving entity. This information should include name, address, phone number, and email address.
e. Contact information for the relevant license/permit issuing agency for both the shipping and receiving entity. This can be used to verify that the cargo was produced/manufactured/cultivated lawfully on the shipping end, and that it is, in fact, going to a lawful business on the receiving end.
2. Be aware of any additional licenses or permits that are required to transport hemp through the state you are operating in. Despite the unequivocal ability to transport hemp and hemp-derived products in interstate commerce, various states across the country are considering adopting regulations that hemp can only be transported by licensed/permitted individuals. In some states you must be an employee of the licensed/permitted shipping entity to transport hemp or hemp-derived products.
3. If you have the option, plan your route accordingly. Some states have friendlier hemp regulations than others. As mentioned above, some states even require additional licenses or permits to transport hemp through their borders. Because of that, if you can plan your route to avoid these pitfalls, you will be doing yourself a great favor.
If you would like to speak with Philip regarding this post, please do not hesitate to contact the hemp lawyers at Kight Law Office.
February 14, 2020
This post was written by Kight on Cannabis attorney Philip Snow. Kight on Cannabis is a law firm founded by attorney Rod Kight that represents legal cannabis businesses. You can contact us by clicking here.