Stopped By Law Enforcement With Hemp- What You Need to Know (Part 1 of 2)

Editor’s note: In this article, part one of a two parts series about hemp and law enforcement, Kight Law attorney Philip Snow addresses important things to know about being stopped by law enforcement when in possession of hemp or a hemp-derived product. 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. Until state level regulation of hemp becomes more consistent across the country we will continue to see arrests. -Rod Kight

Many of the readers of this blog deal with hemp on a first-hand basis, whether it be cultivating, extracting, transporting, selling, or even consuming it in some form or fashion. This first installment of a two-part series covers important things to know in general about being stopped in public by law enforcement while in possession of hemp or a hemp-derived product. The second installment addresses the specific circumstance of being stopped by law enforcement while transporting hemp or hemp-derived products, including a discussion of probable cause.

Background Information

The Agricultural Improvement Act of 2018 (Farm Bill)[1], enacted on December 20, 2018, broadly legalized hemp and all parts of the hemp plant. It defines “hemp” as… “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” Additionally, the Farm Bill contains a Controlled Substances Act (CSA) exemption for hemp, stating in relevant part:

(a)(2) The term ‘marihuana’ does not include— ‘‘(i) hemp, as defined in section 297A of the Agricultural Marketing Act of 1946 (AMA).[2]

The passage of the Farm Bill resulted in a rapid expansion of the hemp industry across the United States. This expansion not only involved the number of people and entities cultivating hemp, but it also provided expanded opportunities for businesses to engage in the manufacturing and production of hemp-derived products, including raw hemp in the form of pre-rolled cigarettes or hemp flower, as well as hemp-derived cannabidiol (CBD) products.

However, despite the widespread legalization of hemp and hemp extracts pursuant to federal law, some state laws still prohibit the cultivation and manufacturing of hemp and hemp-derived products and the distribution of products containing hemp within their borders. In some instances, this prohibition also extends into the personal possession of hemp and hemp-derived products. Many states require special licenses or registrations to possess hemp. For this reason, it is important to be aware of the laws, regulations, and agency positions of the states in which you live and operate.

In light of the rapid expansion of the hemp industry pursuant to the Farm Bill and the ever-evolving hemp and hemp-derived product marketplace, it is important to know what to do in the event you are stopped in public by law enforcement while in the possession of hemp or a hemp-derived product.

IF YOU ARE AN INDIVIDUAL IN POSSESSION OF HEMP OR HEMP-DERIVED PRODUCTS AND YOU ARE STOPPED IN PUBLIC

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 (or raw) 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. Remain Silent. You have the right to remain silent. You do not have to answer questions about where you are going, where you came from, what you are doing at the present moment, where you live, or your nationality. If you wish to exercise this right, you must say it out loud to the law enforcement officer you are interacting with.

It is important to note that while you always have the right to remain silent, in some states or jurisdictions, you may be required to identify yourself to law enforcement and a failure to do so could result in an arrest. With that in mind, if you are forced to identify yourself, say only your name and nothing else.

3. Remain calm. Most people are intimidated by law enforcement officials, and oftentimes interactions with law enforcement create a sense of anxiety. Remember that keeping your composure at all times will benefit you greatly in the long term. Most importantly, do not run, obstruct, or resist law enforcement. Keep your hands where law enforcement can clearly see them, and do not reach for anything without being told to do so. If you are asked to provide your identification, do not provide any false information.

4. You do not have to consent to a search of yourself or your belongings. Keep in mind that if law enforcement suspect you are in possession of a weapon, they may pat down your clothing. Refusing to consent may not stop law enforcement from carrying out a search, but if you verbally make an objection to the search either before or during it, you may be able to preserve your rights in a later legal proceeding.

5. If you are arrested, you have the right to an attorney. If you cannot afford an attorney then one will be appointed to you by the Court. Immediately ask law enforcement to speak with an attorney and remain silent until you speak with one. It is generally not a good idea to give any explanations or excuses during an arrest, nor is a good idea to engage in an argument. Furthermore, do not sign anything or make any decisions without the advice of an attorney.

6. If you are permitted to make a phone call, keep in mind that unless you are speaking with an attorney, law enforcement can and often do listen in on phone calls.

CONCLUSION

Being stopped by law enforcement causes anxiety for everyone. When you are confronted with the unpleasant situation of being stopped by law enforcement in public while in possession of hemp or hemp-derived products, it is important to remember that not only do you have rights, but you need to exercise your rights to put yourself in the best position possible.

If you would like to speak with Philip regarding this post, please do not hesitate to contact the hemp lawyers at Kight Law Office.

[1] 7 U.S.C. § 1621 subsection 10111

[2] 21 U.S.C. § 801 et seq.

February 12, 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.