Tampa Police Department Issues Legal Bulletin on the Marijuana Ordinance

On Friday, April 1st, the Tampa PD will start enforcing the new marijuana ordinance. I’ve written about this ordinance and what it could mean here and here, and about my conversation with the Tampa City Attorney about the ordinance. I had also reached out to the Tampa Police Department to get a copy of any instructions that they would give to police officers about how to actually use and apply the ordinance out on the street. This morning they emailed me a copy of the Legal Bulletin and new Standard Operating Procedure that went out to all officers on Monday.

The Legal Bulletin and SOP set out the procedures that the police are supposed to follow when they come across someone who has marijuana or marijuana paraphernalia. Remember, though, that neither the Legal Bulletin nor the SOP are the law – they’re the Tampa PD’s interpretation  of the law and how they will apply it – so as Captain Barbosa would say, they’re more like guidelines.

Here’s what they have to say about who will qualify for receiving a civil citation instead of a criminal charge for marijuana possession:

Effective April 1, 2016 we are instituting a civil citation procedure applicable to certain cases where a citizen is found to be in possession of 20 grams or less of marijuana. Instead of arrest, the civil citation will be issued only when:

  1. The amount of marijuana possessed is 20 grams or less;
  2. The subject is 18 years of age or older;
  3. No other criminal charges are applicable from the same incident;
  4. The subject is qualified for release on his own recognizance; and
  5. The subject has no prior unpaid civil citation.

The biggest thing here is that if you have previously received a civil citation but haven’t paid it, you don’t qualify to get another one.

Pay. The. Citation.

Also, the police are not going to change how they conduct an encounter with a suspect. Simply because there’s a new ordinance in effect making marijuana possession a civil offense, don’t expect Officer Friendly to just dish out a citation and go on about their business without searching you and/or your car:

In the typical street encounter, nothing changes up until the time a charging decision is made. As an example, an officer observes a traffic infraction and stops a citizen’s car. As the officer approaches the car, the distinct odor of burning marijuana is detected emanating from within the car. The officer explains the reason for the stop and obtains the citizen’s D.L. and registration. The marijuana odor, of course, gives the officer probable cause to search the vehicle and its occupants. The officer should control the scene and ensure his own safety. Obtain backup as necessary and handcuff the citizen(s) prior to searching them or the vehicle. Once the search is completed, decide what you have.

Officer discretion:

As I’ve discussed in earlier posts, the Tampa PD are maintaining that they have the discretion to still issue a misdemeanor charge instead of a civil citation even if you qualify for the civil citation. But if the police officer takes this route, they must be able to justify their choice:

Officers retain the discretion to elect to proceed with formal misdemeanor arrest in a particular case, but must be able to justify that decision with a legitimate, non-discriminatory reason.

The SOP gives two examples of people who would actually qualify for the civil citation, but aren’t the “intended beneficiaries” of the civil citation program:

A subject with a recent criminal history involving the illegal sale of cannabis or other drugs is not the intended beneficiary of the Tampa program. Similarly, a subject who has received several cannabis citations in a short period of time, even when the citations are promptly paid, is not apparently inclined to modify his illegal behavior based on the threat of further fines.

Interestingly, if the police officer chooses to use their discretion and issue a misdemeanor charge, they have to give a justification for that choice in writing:

When officers elect to arrest (even in ROR cases) under the misdemeanor statute, there is a drop down menu in Versadex for recording the reason(s) for the decision not to issue the civil citation in lieu of arrest. When that decision is based on officer discretion, the specific reason must be articulated in an “explain below” box.

Other issues / questions:

Q: Do I get my weed back?

A: Really? Uh, no. From the SOP:

All marijuana and paraphernalia will be seized, packaged and submitted to Evidence Control as in all drug cases. The marijuana and/or paraphernalia will not be submitted to FDLE for testing.

Q: Does this only apply to weed? What if I’m vaping it?

A: The SOP says that the ordinance only applies to straight-up, pure, unadulterated grass – not synthetics, resin, or hash oil:

Hashish, hash oil, resin, wax, synthetic marijuana and similar substances are not eligible for the civil citation process.

Since vaping generally requires using BHO (I’m speaking as a non-vaper so feel free to correct me here) it wouldn’t qualify for the civil citation program.

Q: How are police officers going to figure out if it’s over or under 20 grams when it’s a close call?

A: Here’s what the new SOP has to say about those situations:

Officers may encounter circumstances where the amount of marijuana recovered may, or may not, exceed 20 grams (not including the baggie or other packaging material). In these cases when the citizen otherwise qualifies for the civil citation procedure, officers may:

  1. Give the citizen the benefit of the doubt without further delay and issue the civil citation; or
  2. Secure the scene and transport the citizen and evidence to a district office or other location where the seized marijuana can be weighed. If the weight exceeds 20 grams, the citizen may be charged with felony possession pursuant to F.S. 893.13(6)(a). If the weight is 20 grams or less, the citizen may be transported back to the original scene, issued a civil citation, and released.

Translation: the police officer can just eyeball it or, if they want to “put the fear of God” into you they can haul you and the weed to a police station and make you sweat while they weigh your weed.

Honestly the biggest takeaway is that if you get a civil citation you should pay it as soon as you can. Just one unpaid citation will disqualify you from getting another civil citation.