Tennessee's highest court has ruled that notwithstanding the federal legalization of hemp, which smells like marijuana, a drug-sniffing police dog's signal that cannabis odor is present can still be a factor in giving law enforcement probable cause for a vehicle search.
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In a 5-0 decision Tuesday, the Tennessee Supreme Court concluded that police officers had probable cause to search a vehicle following a February 2020 traffic stop that turned up one ounce of marijuana, a firearm and drug paraphernalia, ultimately leading to a felony indictment.
The justices concluded that even though a police dog could not tell the difference between federally legal hemp and illegal marijuana — both produced by the same cannabis plant and differentiated only by concentration of the psychoactive compound delta-9 THC — the totality of circumstances, including the dog's affirmative signal, gave officers probable cause.
"We hold that a positive indication from a drug-sniffing canine may continue to contribute to a finding of probable cause when examining the totality of the circumstances, notwithstanding the legalization of hemp," Justice Roger A. Page wrote for the court.
The unanimous decision affirms a decision by the state's intermediate Court of Criminal Appeals reversing a lower trial court's ruling that suppressed the evidence and dismissed the charges against Andre JuJuan Lee Green.
The justices accepted the trial court's factual finding that the police dog could not tell the difference between illegal hemp and legal marijuana, but nonetheless concluded that adopting a "totality of circumstances" approach was appropriate in assessing whether probable cause existed.
"Although the legalization of hemp has added a degree of ambiguity to a dog's positive alert, a positive alert from a reliable canine trained to detect multiple illegal substances is still probative of whether or not illegal substances are located inside of an automobile and should therefore still be considered in a totality-of-the-circumstances analysis," the decision said.
The justices determined that other factors, including an officer's report of a "strong odor" from the car, as well as a backpack in the vehicle containing the contraband, which both of the car's occupants said did not belong to them, added up to a valid assessment of probable cause.
"Each of the only occupants of the vehicle denied owning the backpack," according to the decision. "Because it is very unlikely that neither occupant owned the backpack, these responses strongly support the probable cause determination."
The decision remands the case back to the trial court.
Gregory D. Smith, an attorney for Green, told Law360 on Tuesday that he and his client would review the decision and determine whether to petition the U.S. Supreme Court to grant certiorari.
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