The smell of marijuana as probable cause to search a vehicle has been a legal grey area in recent years. In 2018, the Farm Bill federally legalized cannabis products containing less than 0.3% THC. This made the smell of marijuana less clear as an indicator of illegal activity, as law enforcement officers cannot distinguish between legal hemp and illegal marijuana by its scent alone. However, in September 2022 a Tennessee court ruled that under the automobile exception to the Fourth Amendment’s warrant requirement, the smell of marijuana is still probable cause to search a vehicle. Read more about this ruling and its implications below.
The Plain Smell Doctrine In Tennessee
The “plain smell” doctrine in Tennessee states that a distinctive odor can provide probable cause to believe that contraband is present, which justifies a warrantless search by law enforcement. This doctrine has been called into question with the legalization of hemp, as it now defined by federal and Tennessee law. Hemp and illegal marijuana smell virtually identical, making it practically impossible for law enforcement to distinguish between the two.
The Tennessee Bureau of Investigations has confirmed that even trained drug sniffing dogs cannot distinguish between hemp and marijuana. At a media event in Knoxville, TBI assistant director for the forensic services division stated, “The crime lab has provided hemp samples to K-9 handles for them to experiment with, and they confirmed what they feared which was their dog simply cannot tell the difference between hemp and marijuana.”
Implications of September 2022 Tennessee Court Ruling
In September of 2022, the Tennessee Court of Criminal Appeals, in State v. Hampton, ruled that the smell of marijuana is still probable cause to search a vehicle. This ruling cited the automobile exception to the Fourth Amendment, which allows law enforcement officers to conduct a warrantless search if they have reason to believe that evidence of a crime or contraband is present in the vehicle. This exception is based on the notion that there is a lower expectation of privacy in motor vehicles because of the regulations under which they operate. In addition, the ease of mobility creates an inherent exigency to prevent removal of evidence and contraband.
The appellate court noted that its ruling may change in the future, but not “until our supreme court or our legislature determines” that the odor of hemp or marijuana is not probable cause to search a vehicle. It’s likely that this ruling will be appealed and the Tennessee Supreme Court will have the final say on the issue.
How Strict Is Tennessee On Marijuana?
Marijuana is not legal in Tennessee for medical or recreational use. There have been attempts to legalize it, but none of the bills have succeeded. Possession of up to half an ounce of marijuana is a Class A misdemeanor in Tennessee that can result in a year of jail and a $250 fine and significant court costs for first offenders. Sale and cultivation of marijuana are both felony charges with serious penalties.
Contact A Tennessee Marijuana Possession Lawyer
Although cannabis products are becoming increasingly decriminalized in the United States, it’s important to remember that marijuana is still an illegal substance in Tennessee. If you are facing marijuana charges in Tennessee, it is important to hire an experienced criminal defense attorney that is up to date on the latest changes in the law.
The attorneys at Barnes & Fersten have experience handling a variety of marijuana-related cases, and we can help you understand your options and work towards the best possible outcome for your case. Give us a call today at 865-344-2963 to schedule a free consultation.
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.