By James Kemp and Ryan C. Davis
For decades, Tennessee courts have long held that the smell of marijuana is sufficient to establish the probable cause necessary for police to obtain a search warrant or to conduct a search or seizure under the automobile exception to the warrant requirement. However, times are changing.
The Fourth Amendment guarantees people the right to be free from unreasonable searches and seizures. However, a search may be reasonable if it is supported by a warrant or if there are circumstances that exist that justify a warrantless search. Furthermore, warrants must be support by probable cause.
One common exception to the warrant requirement is called the “automobile exception.” Basically, if a police officer has probable cause to believe that an automobile contains contraband or evidence of a crime, the officer can search the entire vehicle, including all containers inside of it, without a warrant under certain circumstances. So, you may ask, what might give a police officer probable cause to search an automobile under the automobile exception to the warrant requirement? Enter the “plain smell” doctrine.
Under the plain smell doctrine, a distinct odor (such as the smell of marijuana) can provide probable cause for officers to believe that an automobile contains contraband, and thus, a search warrant is not required to search the vehicle. The plan smell exception to the search warrant requirement is extremely easy for police officers to assert because probable cause is an objective determination. If a police officer is willing to testify that he or she detected the smell of marijuana coming from an automobile, it is difficult to argue otherwise, even if no marijuana is subsequently discovered.
However, because of the legalization of hemp under both federal and Tennessee law, there are major issues with law enforcement relying on the odor of marijuana to provide probable cause to search a vehicle or to get a warrant. The director of the Tennessee Bureau of Investigation recently acknowledged that neither law enforcement officers or K-9 drug sniffing dogs can visually tell the difference between legal hemp or illegal marijuana, nor can they detect the difference in odor between the two.
As a result, the smell of marijuana, by itself, can no longer provide probable cause for police officers to search an automobile or to get a warrant because no human being or drug dog can smell or visually distinguish between illegal marijuana and legal hemp. Although this issue has not been litigated or ruled on by any appellate court in Tennessee, prosecutors throughout Tennessee are already becoming hesitant to pursue cases where police officers collected evidence through searches solely based on the plain smell of marijuana.
If you were arrested following a search based upon the alleged plain smell of marijuana, that search may not be legal. Call the criminal defense attorneys at Ryan C. Davis Law, PLLC today at (615) 649-0110. We understand this issue and the science that the government would like to ignore, and we can help you begin preparing your defense today.
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