I would like to think the legal possession of any single item would never constitute a warrantless search of my vehicle, much less the basis of a criminal charge. Sadly, the lawful possession of hemp has resulted in just that: warrantless searches and criminal charges. The issue of whether the smell of marijuana permits police to conduct a warrantless search is an area of law that has evolved in recent years. The legalization of hemp has clearly altered the underlying factual context in which the plain smell doctrine was applied. As some states have legalized marijuana for medical purposes, and others have legalized hemp, the issue remains the same: whether the odor of cannabis continues to establish probable cause to conduct a warrantless search of a vehicle?
As Tennessee Appellate Courts have not addressed the issue directly, other States have and constitute persuasive authority for Tennessee. To provide some background on how this legal issue has resurrected after being established law for decades, the starting point is the Farm Bill. The Farm Bill effectuated the federal-level de-criminalization of hemp and hemp-derived products. Tennessee followed suit enacting similar laws. Hemp is defined as having a THC concentration of not more than .3 percent on a dry weight basis. To put it simply, the distinction between hemp and marijuana is a legal one. The Tennessee Bureau of Investigation has acknowledged that there is no observable difference between the two substances. TBI agent has stated that "There's no way under a trained eye or even a trained microscope, that you can tell the difference between legal hemp and high-grade marijuana. Assistant Director of TBI Mike Lyttle testified before State Legislation that the crime lab has provided hemp samples to K-9 handlers for them to experiment with, and they confirmed that their dog simply cannot tell the difference between hemp and marijuana.
I have filed several motions to suppress based on this singular ground and cited a change of underlying logic based on the legalization of hemp. The prevalence of such products has increased substantially since its decriminalization. Both the non-psychoactive “hemp” and psychoactive “marijuana” derive from the same Genus of plant, Cannabis, and thus contain very similar characteristics.
The Courts have long held that the plain smell of marijuana alone was sufficient to establish probable cause due to marijuana's distinctive odor and illegal status. The 2014 Court of Criminal Appeals decision in State v. Crosby cited the officer by stating "marijuana gives off an extreme odor. I mean, there's no other smell like it." While the plain smell exception continues to be the basis of warrantless searches across Tennessee, the continued use of its application has been tempered by changes in Federal and State law. The most recent attack on the plain smell exception was heard in Commonwealth of Pennsylvania v. Barr. In Pennsylvania, the use of medical marijuana is permitted for certain underlying health conditions.
The Superior Court in Pennsylvania recently took the issue up and agreed with the Trial Court that the Odor of marijuana does not per se establish probable cause to conduct a warrantless search of a vehicle. In Allentown, Pennsylvania, supervising trooper and training Trooper stopped Mr. Barr and his wife after failing to stop at a solid white line at a stop sign.
The training trooper approached the Barr's vehicle and states she smelled burnt marijuana. The supervising trooper then approached the vehicle and states he smelled raw AND burnt marijuana through the open window when he was at the rear of the vehicle. The Troopers later discovered .79 grams of raw marijuana in a sealed Ziploc bag in the center console.
The Troopers than conducted a probable cause search based on the odor of marijuana and found .79 grams and shake of marijuana.
The Pennsylvania Superior Court stated that "It would strain credulity to think the legislature intended that all medical marijuana users under the Medical Marijuana Act - hundreds of thousands of Pennsylvanians already, may be presumptively subjected to searches by law enforcement due to the odor of marijuana alone." "Lawful users of medical marijuana do not surrender their 4th amendment rights merely because other citizens will continue to possess contraband marijuana…"
Although this is not considered an authoritative win for Tennesseans, I continue to fight for citizen's rights on a daily basis, and staying abreast of cases like provide me the tools to give Judges the persuasive authority to uphold the Constitutional rights of my clients.
If you have been charged with a marijuana drug offense, contact me today to discuss what we need to be doing today to prepare your defense.
