When it comes to marijuana charges in Tennessee, one of the most important legal questions is whether the police had probable cause to search you, your vehicle, or your home. Probable cause is a cornerstone of the Fourth Amendment, which protects citizens from unreasonable searches and seizures. But what exactly does it mean—and how does it apply in marijuana-related cases?
This question has become even more complex in recent years. With the rise of legal hemp and CBD products, the once-clear line between the smell of marijuana and illegal activity has blurred. As a result, law enforcement officers—and courts—are facing new challenges when it comes to establishing probable cause.
At Barnes and Fersten, our drug offense lawyers have defended countless clients where the legality of a search was front and center. In this blog, we’ll break down what probable cause means under Tennessee law, how it applies in marijuana cases, and—most importantly—what your rights are if you’re stopped, searched, or arrested.
What Is Probable Cause?
Probable cause is a legal standard that gives law enforcement the authority to make an arrest, conduct a search, or seize property. Under both the Fourth Amendment to the U.S. Constitution and Article I, Section 7 of the Tennessee Constitution, individuals are protected from unreasonable searches and seizures. But that protection hinges on whether police had sufficient cause to take action in the first place.
In simple terms, probable cause exists when officers have a reasonable belief, based on facts and circumstances, that a crime has been, is being, or will be committed. It’s not just a hunch or suspicion—it requires objective evidence.
Tennessee courts evaluate probable cause based on what a reasonably cautious officer would believe in a similar situation. It’s a flexible standard, but one that must be rooted in specific and articulable facts, but a level of proof above that making it more likely than not that an individual committed a crime.
Probable Cause vs. Reasonable Suspicion
It’s important to distinguish probable cause from reasonable suspicion, a lower standard often used to justify brief stops or pat-downs (like during a traffic stop or stop-and-frisk). Reasonable suspicion allows an officer to investigate further, but it does not allow them to search your vehicle or belongings unless probable cause develops during the stop.
Legal Standard | What It Allows | Required Evidence |
Reasonable Suspicion | Brief detention or frisk | Specific, articulable facts (less than probable cause) |
Probable Cause | Search, arrest, obtain warrant | Objective facts pointing to a crime being more likely than not |
In summary, probable cause is the legal line between a lawful search and a violation of your rights. If law enforcement crosses that line without justification, any evidence they find after the fact may be inadmissible in court.
Common Scenarios in Tennessee Marijuana Cases
In Tennessee, most marijuana-related charges begin with a search—and that search almost always depends on whether law enforcement had probable cause. Understanding the common scenarios where these issues arise can help you recognize whether your rights may have been violated.
Traffic Stops
The majority of marijuana arrests in Tennessee stem from routine traffic stops. Officers may claim to smell marijuana, see a suspicious object, or observe behavior they interpret as drug-related. Here’s how probable cause can come into play:
- Smell of marijuana: Often cited as justification to search a vehicle. However, this is becoming a gray area due to the presence of legal hemp. Any officer our criminal defense attorneys have ever questioned will admit that they cannot tell the difference based on smell between such substances. If they were to claim there is a difference in smell, that officer will quickly lose all credibility.Â
- Visible items: If officers see rolling papers, baggies, or plant material, they may argue probable cause exists, but this is only probable cause for drug paraphernalia and only if they can establish it is for the illegal marijuana substance rather than a legal substance.
- Driver behavior: Nervousness, inconsistent answers, or fumbling may raise suspicion, but these alone are not enough to establish probable cause.
What may start as a stop for simple misdemeanor possession can quickly escalate to felony charges of intent to sell or deliver based on how much marijuana is found or whether other items (like scales or large amounts of cash) are present.
Searches of a Home
The highest level of Fourth Amendment protection is given to your home. In nearly all cases, law enforcement must obtain a warrant to search a residence—unless:
- You give voluntary consent;
- Illegal activity is in plain view – this is a tricky area too considering officers cannot tell the difference between marijuana and Delta-8 or other CBD products so a criminal defense attorney can still argue that plain view is insufficient.
- There are exigent circumstances (e.g., imminent destruction of evidence). However, the destruction of evidence cannot simply be a hunch that the defendant may or can destroy the evidence.Â
Even if marijuana is found, the case may hinge on whether the search was legal from the outset.
Public Spaces or Stop-and-Frisk
If you’re walking in a park, parking lot, or outside a venue, police may engage in a brief stop based on reasonable suspicion—but they can’t search you without either:
- Your consent;
- A warrant;
- Or probable cause (such as visible marijuana or the strong smell of it on your person).
Searches of Bags or Personal Property
If marijuana is found in a backpack, purse, or glove box, the legality of the search will depend on:
- Whether probable cause existed for the search of that container;
- Whether the container was within reach during a lawful arrest or stop.
In each of these scenarios, the key legal question remains: did the officer have objective, specific reasons to believe a crime was occurring? If not, the search—and any resulting charges—may not hold up in court. These situations are where having experienced drug charge attorneys on your side makes all the difference.
Can the Smell of Marijuana Alone Justify a Search?
For years, the smell of marijuana was considered a strong enough basis for law enforcement to search a vehicle or even detain someone in Tennessee. But with the legalization of hemp—which smells identical to marijuana—the legal landscape has changed.
What Tennessee Law Says
Under traditional legal standards, officers who claimed to smell marijuana could use that as probable cause to:
- Search a vehicle without a warrant;
- Extend a traffic stop;
- Detain individuals for further investigation.
But in recent years, Tennessee courts have started to question whether smell alone is still a reliable indicator of criminal activity, given the widespread legality of hemp-derived products like CBD. Hemp is indistinguishable from marijuana by smell alone, and under federal and Tennessee law, it is legal if it contains less than 0.3% THC. This creates a serious issue for law enforcement: how can an officer be certain the odor indicates illegal marijuana and not legal hemp?
As a result, some courts have ruled that smell alone may no longer justify probable cause, particularly without supporting evidence such as visual confirmation, behavior suggesting impairment, or an admission of marijuana use.Â
What This Means for You
If you were stopped and searched based only on an alleged odor of marijuana, there may be grounds to challenge the legality of that search. Suppressing the evidence could lead to a dismissal of your case.
Your Rights When Stopped or Searched
Whether you’re pulled over during a routine traffic stop or approached by law enforcement in public, it’s important to understand your rights. In many marijuana cases, officers rely on people unknowingly giving up those rights—often making it easier to justify a search or arrest. Knowing what you’re entitled to under the law can make a critical difference in defending your case.
đźš« You Have the Right to Say No to a Search
If an officer asks, “Do you mind if I search your car?” — you can and should say no. Unless the officer has:
- Probable cause,
- A valid search warrant, or
- You are lawfully under arrest,
…they cannot search your property without your consent.
Far too often individuals give officers consent and walk their way into criminal charges. Just because an officer claims they will get a search warrant, does not mean they will get it. Similarly, an unreasonable delay in searching the vehicle may result in an additional defense depending on the facts and circumstances available to lead the officer to believe there were illegal substances within the vehicle. However, all of those defenses go away if you give voluntary consent to a search.
💡 Legal Tip: Politely and clearly state: “I do not consent to any searches.” You are not required to justify your answer or argue—just state it.
🛑 You Have the Right to Remain Silent
You are not required to answer questions about drug use, where you’re coming from, or what’s in your vehicle. Voluntarily answering these types of questions often gives law enforcement more grounds to continue the stop or pursue a search.
Simply say: “I’m exercising my right to remain silent.”
This helps preserve your legal options if charges are later filed.
If Your Rights Were Violated
Even if marijuana or other evidence was found during a search, that evidence may not be admissible in court if your rights were violated. An experienced lawyer for drug possession can evaluate whether the search was lawful and may file a motion to suppress illegally obtained evidence.
Why Probable Cause Matters in Your Defense
Probable cause is more than a procedural detail—it can be the key to your defense in a marijuana case. If the police didn’t have a lawful basis to search you, your vehicle, or your home, any evidence they found may be inadmissible in court. That means the entire case against you could fall apart.
Here’s how a skilled defense attorney can use a lack of probable cause to your advantage:
- File a Motion to Suppress: If we can show that the search was unlawful, we’ll ask the court to exclude any evidence obtained as a result.
- Challenge Police Testimony: Officers often rely on vague claims—like “I smelled marijuana”—which can be challenged under cross-examination or through inconsistencies in bodycam footage or police reports.
- Undermine the Prosecution’s Case: Without key evidence, prosecutors may be forced to reduce or even dismiss the charges.
Our Role as Defense Attorneys
At Barnes and Fersten, we understand how to dissect every detail of a stop or search. We look at:
- Dash and body camera footage
- Officer reports and affidavits
- Timeline inconsistencies
- Whether the officer’s claimed probable cause aligns with Tennessee law
In Tennessee, marijuana charges can range from simple misdemeanor possession to more serious felony offenses like possession with intent to sell, sale. No matter the severity of the charge, the validity of the search that led to your arrest can make or break your case. Our drug felony lawyers have successfully defended clients by proving that law enforcement acted outside their legal authority—and we’re ready to do the same for you.
Arrested for Marijuana Charges in Tennessee? Call Barnes & Fersten Today
At Barnes and Fersten, we’ve helped countless clients in Knoxville and across East Tennessee challenge unlawful searches and protect their constitutional rights. Whether you’re facing a first-time misdemeanor or a serious felony drug charge for marijuana sale or delivery, the attorneys at Barnes and Fersten are here to fight for your rights.
Our experienced criminal defense attorneys, we know how to challenge unconstitutional searches and build a strong defense from day one. If you’ve been arrested for a marijuana charge in Tennessee, call us at 865-805-5703 or fill out our contact form today for a free and confidential 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, including Knox County, Blount County, Sevier County, Roane County, Anderson County, and Cumberland County.
