A 50-year old woman who was bird-watching in Weston was wrongfully arrested
for felony possession of marijuana when police found her burning sage
in the woods. According to Robin Brown, she burns herbs and plants in
her practice of “smudging” for spiritual purposes. The sage
gave a false positive when it field-tested positive as marijuana.
However, police did not arrest the Ms. Brown right away. Instead, they sent the sage to a lab to have a chemist test it and they submitted the case to the Broward County State Attorney’s Office to be reviewed. The prosecutor there filed charges of Felony Possession of Marijuana without receiving the chemist report back confirming the presence of marijuana.
As a result, the bird-watcher was wrongfully arrested at her job, subjected to a strip and cavity search, and held in custody until she posted bail in the early morning hours. A later lab test proved that the sage she was carrying was not marijuana. She’s now suing the State Attorney’s Office for her wrongful arrest, a task that will be difficult given the statutory immunity that protects prosecutors from lawsuits when they are acting within the scope of their jobs.
Marijuana is a unique substance under Florida law. Generally, in order for prosecutors to prove that a person possesses an illegal drug, such as cocaine or oxycodone, they have to bring a chemist into court to testify that the substance was laboratory tested and that it is in fact cocaine or oxycodone, etc. Marijuana is the exception. Florida law allows the government to prosecute a person for possession of marijuana as long as a police officer testifies that based upon his training and experience, he identified the substance as marijuana. That means, a lab test might not ever be done in a marijuana case. If this was the case Ms. Brown’s situation, that could mean she would be subjected to a criminal trial and possibly a criminal record and up to five years in prison, all because a simple chemical test was never done.