In a recent decision, the Tennessee Supreme Court addressed a key issue for criminal defense: can police rely on the plain smell of marijuana to justify a vehicle search when a police officer and/or canine dog cannot distinguish between legal hemp and illegal marijuana? In State of Tennessee v. Andre JuJuan Lee Green, the Court ruled that while a police officer or canine alert alone does not automatically establish probable cause, it can still be a significant factor in the totality of the circumstances used to justify a vehicle search. This changes the law where previously plain smell was per se enough alone to justify a search of a vehicle.
This ruling has major implications for anyone facing felony and/or misdemenaor drug charges in Tennessee, especially in the post-hemp legalization era. In this blog, we’ll dive into the details of the Andre JuJuan Lee Green case, the Court’s reasoning, and what it means for both criminal investigations and criminal defense.
Tennessee Supreme Court 2024 Ruling Summarized
In February 2020, a routine traffic stop turned into a pivotal legal battle that could impact anyone facing drug-related charges in Tennessee. Andre JuJuan Lee Green was a passenger in a vehicle pulled over for using high beams. During the stop, Officer Andrew Trescott noticed a strong odor coming from the car and, after the driver refused consent for a search, called in a drug-sniffing dog. The canine alerted to the presence of drugs, leading the officer to search the vehicle without a warrant. Inside, the officer found marijuana, a firearm, and drug paraphernalia, resulting in serious felony charges against Green.
Green’s defense argued that the canine’s alert was unreliable because the dog couldn’t distinguish between hemp (which was legalized in Tennessee in 2018) and illegal marijuana. The trial court agreed, ruling that the search was invalid and suppressing the evidence. The State appealed, and the case eventually reached the Tennessee Supreme Court.
At the heart of the appeal were two critical legal questions:
- Can a canine alert still contribute to probable cause in the era of legal hemp?
- How should the totality of circumstances be considered in vehicle searches?
Green’s defense argued that the dog’s alert was not enough to justify the search, given that hemp and marijuana are nearly identical in smell and cannot be distinguished from one another. The State countered that, even if the alert wasn’t conclusive on its own, the officer’s observations—like the strong fragrance and the occupants’ suspicious or nervous behavior—provided enough context to establish probable cause.
The Tennessee Supreme Court ultimately sided with the State, but the court’s ruling is significant and changes the landscape of a plain smell search across Tennessee. While the Court ruled that a canine alert alone doesn’t automatically justify a search, it can still be a critical part of the overall circumstances law enforcement considers. In this case, the officer’s additional observations, such as the nervous behavior of the vehicle’s occupants and their denial of owning a suspicious backpack, contributed to the Court’s conclusion that probable cause existed.
This ruling makes it clear: while the legalization of hemp complicates matters, law enforcement can still rely on canine alerts as part of their decision-making process, but not if it is the only basis for the search. For those facing drug charges, this case reinforces the importance of understanding your rights and the factors that contribute to lawful searches. If you’ve been charged based on evidence from a vehicle search, it’s essential to have a defense team that understands these nuances and can challenge the legality of the search where necessary.
A judge’s decision to suppress a search based on plain smell will ultimately come down to your criminal defense attorney’s ability to cross-examine the officer to get admissions through testimony of the circumstances surrounding the search. For example, the Tennessee Supreme Court seemingly holds the position that nervous behavior in addition to the smell may be enough for a search. However, in what scenario is someone not nervous speaking to a police officer after being pulled over. Critical questioning about the behavior being normal under the circumstances of a traffic stop can, if litigated well, lead to the suppression of such evidence.
Impact of Hemp Legalization on Probable Cause
The legalization of hemp in Tennessee has introduced a new layer of complexity to probable cause determinations in drug-related cases. Hemp, a strain of cannabis that contains less than 0.3% THC, looks and smells identical to marijuana, making it impossible for a police officer or drug-sniffing dog to tell the difference. This creates a challenge: How can law enforcement use canine alerts or plain smell to justify vehicle searches when the alert could be triggered by a legal substance?
In the Andre JuJuan Lee Green case, the Tennessee Supreme Court addressed this dilemma by emphasizing that a police officer or canine alert alone is no longer enough to provide probable cause for a search. Instead, courts must consider the totality of the circumstances surrounding the stop, which includes not only the canine alert but also the officer’s observations, the behavior of the vehicle’s occupants, and any other relevant factors.
The Court’s decision reaffirms the idea that probable cause must be based on more than just a dog’s reaction or officer’s smell. This approach allows law enforcement to continue using trained dogs, but it also ensures that searches are not conducted solely on the basis of an alert that could be caused by a legal substance. In this new legal landscape, the totality of the circumstances becomes the deciding factor in whether or not a search is justified, whereas previously it was per se enough in itself for a search.
When Does Totality of Circumstances Establish Probable Cause?
To better understand how the totality of circumstances works in real-world situations, let’s look at two different hypothetical scenarios. In one, multiple factors combine to create probable cause, while in the other, the circumstances do not support a search:
Scenario 1: Totality of Circumstances Creates Probable Cause
Imagine a vehicle is stopped at 2 a.m. for swerving between lanes. When the officer approaches, the driver seems overly nervous—sweating, stammering, and refusing to make eye contact. The officer notices a strong fragrance of air freshener mixed with a faint smell of marijuana, which the driver tries to explain away as coming from a recent passenger. The officer spots a small grinder and rolling papers in the passenger seat, items typically used for personal marijuana consumption. Despite the driver’s excuses, the officer, based on these suspicious circumstances, could reasonably conclude that the vehicle may contain illegal drugs. Here, the driver’s nervous behavior, the conflicting explanations, the smell, and the paraphernalia in plain view collectively may create probable cause for a search.
Scenario 2: Totality of Circumstances Does Not Create Probable Cause
Now, let’s imagine a different scenario. A vehicle is stopped during the day for running a stop sign. The officer approaches and finds the driver calm, cooperative, and providing all the required documentation promptly. The officer smells a faint odor of marijuana, but the driver explains they had been around others smoking marijuana earlier in the day and offers no signs of nervousness outside of the norm of what would be expected during a traffic stop. There are no visible signs of drug paraphernalia or any other suspicious items in the car. In this case, the smell of marijuana alone—especially without any other suspicious behavior or evidence—would likely not be enough to establish probable cause for a search. The totality of the circumstances does not indicate that illegal activity is happening, so a search would be unjustified.
What This Means for Future DUI and Criminal Defense Cases
The Tennessee Supreme Court’s ruling in State of Tennessee v. Andre JuJuan Lee Green has a significant impact on future DUI and criminal defense cases involving vehicle searches. By ruling that a canine alert or the smell of marijuana alone does not automatically establish probable cause, the Court emphasized that law enforcement must evaluate the totality of circumstances when deciding whether a search is justified.
For law enforcement, this means that while cues like the smell of marijuana can still be a factor, they must be considered alongside other evidence. The ruling doesn’t eliminate the ability to search a vehicle based on the smell of marijuana, but it does require that officers have additional supporting facts—such as suspicious behavior or visible drug paraphernalia—to establish probable cause, especially now that legal hemp complicates the equation.
For defense attorneys, the Green ruling provides an additional layer of protection for clients. If the police conducted a search based solely on a factor like smell, without corroborating evidence or suspicious behavior, this ruling can be used to argue that the search violated the defendant’s Fourth Amendment rights. However, if officers can show a combination of factors that justify their suspicion, the search may still be deemed lawful.
For individuals facing DUI or drug-related charges, this decision underscores the importance of knowing your rights during a traffic stop. The presence of legal hemp and the ruling from this case mean that certain factors, like the smell of marijuana, cannot alone justify a search. But if an officer can point to other evidence or suspicious behavior, a search may still proceed legally.
The Green ruling strengthens the argument for challenging searches that do not meet the “totality of circumstances” standard and highlights the need for careful scrutiny of how evidence was gathered. For those facing drug charges, it may provide a crucial defense tool, but it also sets clear expectations for how law enforcement must operate under this updated legal landscape.
Protect Your Rights in the Wake of This Landmark Ruling
If you or someone you know is facing DUI or drug-related charges, this ruling could significantly impact your case. At Barnes & Fersten, our experienced criminal defense attorneys stay up-to-date on the latest legal developments and will fight to protect your rights in court.
Don’t leave your defense to chance. Fill out our contact form or call us at 865-805-5703 for a free consultation to discuss your case and learn how we can help you build the strongest defense possible.
Attorney At Law, Managing Partner
Brandon D. Fersten is an esteemed Knoxville attorney practicing DUI, criminal defense, and juvenile law. Known for his empathetic approach and commitment to his clients, he brings a record of favorable case outcomes including dismissals and not guilty verdicts at jury trials resulting in Brandon being recognized as one of the “Top 40 Under 40” in Criminal Defense, U.S. News’ Best Lawyers: “Ones to Watch,” and Super Lawyers’ “Rising Stars”. Brandon’s professional accolades, combined with his passion for justice, position him as a reliable criminal defense advocate in the East Tennessee legal landscape, including Knox County, Blount County, Sevier County, Roane County, Anderson County, and Cumberland County.
