Is the Smell of Marijuana Probable Cause To Search a Vehicle in Tennessee?

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.”

What is probable cause to search your vehicle?

In order for an officer to have probable cause to search your vehicle, they must have specific and articulable facts which would lead them to believe that illegal activity is taking place. Probable cause can be based on a variety of factors such as the odor of illegal substances, the behavior of the vehicle’s occupants, or information received from a reliable source.

There are also certain circumstances where the police may search your vehicle without a warrant even if they don’t have probable cause. For example, if you are arrested, the police can conduct a search of your person and the area within your immediate control–this is known as a “search incident to arrest.” The police can also search your vehicle if they have reason to believe it contains a weapon or if they can demonstrate that the search is necessary for their safety.

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 865-805-5703 to schedule a free consultation.

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