Even Dogs Can’t Smell the Difference

The Death of ‘Plain Smell,’ as Hemp Is Legalized

“I detected the distinct odor of marijuana.”   

This phrase is used by police in courtrooms across the nation every day to provide probable cause to obtain a warrant or justify a search.

A distinctive odor can provide probable cause to believe that an automobile, home, or other area contains contraband. Tennessee courts have held the smell of contraband sufficient to establish the probable cause necessary for police to obtain a search warrant or to conduct a search or seizure under the automobile or exigent circumstances exception to the warrant requirement.1  This is known as the “plain smell” doctrine.2

The plain smell doctrine has been applied to methamphetamine3 and other drugs or substances,4 but the most famous reindeer of all in plain smell cases is marijuana.  The compelling premise of the doctrine with respect to marijuana has always been that there is nothing on Earth you can legally possess that smells precisely like marijuana. Therefore, if one detects the odor of marijuana, illegal contraband is probably present. If illegal contraband is probably present, law enforcement now has probable cause.  If law enforcement has probable cause they can search your entire vehicle and its compartments or get a warrant to search your home.

At least this was the case before the legalization of hemp as it now defined by federal and Tennessee law.5 This legalization presents a problem for law enforcement policing marijuana possession.

As recognized by the Tennessee Bureau of Investigation, “[t]here’s no way under a trained eye or even a trained microscope that you can tell the difference between [legal hemp and] high grade marijuana, so I think that you can only imagine the investigative nightmare or hurdles that that would present.”6 In addition, “[t]he crime lab has provided hemp samples to K-9 handlers for them to experiment with, and they confirmed what they feared which was their dog simply cannot tell the difference between hemp and marijuana.”7 Legal hemp and illegal marijuana smell the same, “both unburned and burned.”8

With the market for hemp projected to be a $20 billion industry by 2024,9 this article will explain how the premise of plain smell is now bankrupt.  

What Has Changed: Analysis of Hemp Legislation

On February 7, 2014, the Agricultural Improvement Act of 2014 (the “2014 Farm Bill”) was signed into law.10 That Bill defines the term “industrial hemp”, as “the plant Cannabis sativa L. (“Cannabis”) and any part of such plant, whether growing or not, with a delta-9-tetrahydrocannabidiol (“THC”) concentration of not more than 0.3 percent on a dry weight basis.”11

Section 7606 of the 2014 Bill allows individual state governments to authorize the growth and cultivation of industrial hemp for “purposes of research” notwithstanding prohibitions contained within the Controlled Substances Act (“CSA”).12 Thus, with the passage of the 2014 Bill, for the first time since “marihuana”13 was added as a Schedule I drug under the CSA, there was a federally legal route for the production and cultivation of the cannabis plant.  Section 7606, however, left open many important questions about the legality of industrial hemp.

One of the questions of chief importance was whether cannabis that met the definition of “industrial hemp” was actually legal under federal law. The CSA still defined “marihuana” as a Schedule I controlled substance, the possession or distribution of which was subject to federal criminal penalties.14 The CSA defined “marihuana” as “all parts of the plant Cannabis., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.”15 As such, there was no carve out under the CSA for legal “industrial hemp” and federal law appeared to be in conflict as to whether cannabis with less than 0.3 percent THC was federally legal or not, and if so, to what extent.

The provisions allowing for the growth of industrial hemp were not self-executing.  Growth or cultivation of industrial hemp would be permitted only in states that passed: (i) legislation allowing for the growth of industrial hemp; and (ii) regulations governing industrial hemp cultivation through their state department of agriculture.16

On May 13th, 2014, the Tennessee Code was amended, allowing for the growth of industrial hemp and directing the State Department of Agriculture to enact governing regulations.17 Unlike the federal 2014 Farm Bill, Tennessee amended the definition of the term “marijuana” under the state criminal code to exclude “industrial hemp.”18 The Tennessee Department of Agriculture enacted regulations, which went into effect in 2015,19 and the first legal industrial hemp crop since marijuana was outlawed under the CSA was grown in the state that year.

On December 20, 2018, the Agricultural Improvement Act of 2018 (the “2018 Farm Bill”) was passed.20  The 2018 Bill alters the definition of the term “marihuana” under the CSA by excluding hemp grown pursuant to the 2018 Farm Bill Act, clarifying once and for all that hemp is a federally legal crop, separate and distinct from its illicit cousin, marijuana.21 The 2018 Bill  also  alters the 2014 definition of the term “hemp” – no longer “industrial hemp.” Hemp is now defined as, “the plant Cananbis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a THC concentration of not more than 0.3 percent on a dry weight basis.”22 This new definition recognizes the legality of derivative products such as CBD oil, which have been the crux of the economic benefits offered by the hemp industry.  

Tennessee followed suit in 2019 by adopting a definition for “hemp” which is identical to the federal definition.23 The Tennessee legislature also amended the criminal code to include the term “smoking hemp” which is defined as “hemp that is offered for sale to the public with the intention that it is consumed by smoking and that does not meet the definition of a vapor product.”24 This is an explicit recognition that legal hemp can be smoked in the same way as illegal marijuana.

Indistinguishable:  The Chemistry and Properties of Hemp and Marijuana

William Shakespeare is famous for coining the phrase, “A rose by any other name would smell as sweet.”  For the purposes of this article, that phrase could be retooled to state, “a cannabis plant by any other name would smell just as pungent.”  

To understand the differences between legal hemp and illegal marijuana, it is almost as important to understand where the two are indistinguishable. When discussing “hemp” henceforth, we are referring to hemp produced for medicinal or health benefit purposes, that is, for the high-CBD, low-THC content of its flower, not hemp produced for industrial purposes. CBD-Hemp has more in common with the physical characteristics of illegal marijuana than industrial hemp produced for its fiber, which is grown in long bamboo-like shoots.

Both legal hemp and illegal marijuana derive from the plant genus Cannabis and have nearly identical smells, textures, tastes, and looks, whether they are being grown, harvested, stored, ingested or smoked. Both legal hemp and illegal marijuana can be derived from the three recognized Cannabis sativa L. species: Cannabis sativa, Cannabis indica, and Cannabis ruderalis.25 Most of the minor differences between the two are attributable to the cultivar or variety they are derived from. In fact, the only real difference between hemp and marijuana is a legal one based on chemical composition. Hemp contains 0.3 percent or less THC whereas marijuana contains more.26

There are at least 113 different cannabinoids found in varying concentrations in a given cannabis plant.27 These chemical compounds are named for their effect on cannabinoid receptors – the endocannabinoid system in the body.  THC and CBD have emerged to be two of the most important cannabinoids, as they are two of the most highly concentrated in cannabis,28 and they are valued for their uses: THC for its illicit, psychoactive effects (and as a measuring stick for determining legality under the 2018 Farm Bill); and CBD for its emerging medical/health benefits.  Cannabinoids are odorless, colorless, and tasteless, and thus the varying concentrations of THC, CBD, or other cannabinoids within a particular plant do not contribute to its physically discernable attributes.29 The big takeaway here is that the only way to tell whether a given cannabis plant is high enough in THC to run afoul of the law is through sophisticated laboratory analysis (or maybe through ingesting or smoking it).  

On August 26, 2019, the Tennessee Bureau of Investigation (“TBI”) issued a memo – in step with at least three other states30 – that appears to confirm the purchase and availability of new equipment capable of testing for this purpose, although in limited circumstances.31 Per the TBI memo, this expensive testing is available for charges of felony possession of plant material only – expressly excluding commonly possessed items like edibles, vaporized oil cartridges, and other derivates – and only if the case proceeds to trial and the District Attorney’s office requests the testing.32 For misdemeanor charges and felony charges that do not proceed to a trial where the DA requests testing, a rudimentary field test like the Duquenoise-Levine test or the new 4-AP color test developed by Swiss police would be the only chemical analysis performed.33 Field testing appears to be left up to the local police department policy.34 If testing is not performed in the field, results will likely not be available until after an individual has been and charged and appears in court. More importantly, the question remains of whether the plain smell of marijuana alone provides an officer with probable cause to even search for items to test.  The answer is no.   

An entirely different chemical compound is responsible for the odor of cannabis: terpenes.35 Terpenes are chemical compounds produced by many different species of plants that are meant to repel pests and attract pollinators.36 Cannabis is particularly rich in terpenes, although many of these terpenes can be found in other plants as well.  For instance:  (i) pinene is located in pine trees; (ii) linalool can be found in lavender; (iii) myrcene, the most prevalent terpene in many varieties of cannabis, can be found in hops; (iv) limonene can be found in lemons; and (v) caryophyllene can be found in black pepper.37

This last terpene, caryophyllene, found in cannabis and black pepper, is important because it is this terpene that drug detection dogs are trained to detect.38 Specifically, they are trained to detect beta-caryophyllene or caryophyllene oxide, which is a byproduct of the cannabis drying procedure.39 Neither caryophyllene, nor any other terpene naturally deriving from Cannabis, is illegal in and of itself, and thus the smell alone is insufficient evidence of illegality.     

What is Plain Smell?

The Fourth Amendment guarantees the right of the people to be free from unreasonable searches and seizures. A search is reasonable when it is supported by a warrant or circumstances exist justifying an exception to the warrant requirement.  Warrants must be supported by probable cause.  

One circumstance that justifies an exception to the warrant requirement arises in searches of automobiles fittingly called the “automobile exception.” Basically, if an officer has probable cause to believe an automobile contains contraband or evidence of a crime, the officer can search the entire vehicle including all containers inside it without a warrant under certain circumstances.  What might give an officer probable cause to get a warrant for the search of a home or to immediately search an automobile and its compartments under the automobile exception?  Enter, the plain smell doctrine.

The plain smell doctrine states that a distinctive odor can provide probable cause to believe that contraband is present.  Armed with probable cause, law enforcement officers can obtain a warrant or immediately proceed with the search of a vehicle. In Tennessee, the plain smell doctrine was introduced through a Court of Criminal Appeals opinion in Hicks v. State in 1975.40 Russell Hicks was pulled over in his van after a quick series of traffic violations.  Upon approach, the officer opened the driver door to Hicks’s van, performed a search of the vehicle after smelling marijuana, and placed Mr. Hicks under arrest for unlawful possession of the pistol he found on the floorboard.  Marijuana was later found during an inventory search of the impounded vehicle.  On appeal of the trial court’s ruling that the officer was qualified to recognize the odor of marijuana smoke, the Court of Criminal Appeals found that the smell established probable cause to believe a crime other than a traffic violation had been committed, therefore justifying the warrantless search.41

The Tennessee Supreme Court made clear this State’s adoption of the plain smell doctrine the following year in State v. Hughes.42 Since Hughes, Tennessee appellate courts have reinforced and consistently applied the doctrine. Every criminal lawyer in Tennessee has anecdotal experience with the phrase “the distinctive odor of marijuana.”  State v. Crosby, a 2014 Court of Criminal Appeals opinion, contains a particularly illustrative example:  

"Investigator Smith asserted that raw marijuana emitted an odor, even in small amounts. He described it, saying, “Marijuana gives off an extreme odor. I mean, there’s no other smell like it. . . . But, yes, the smallest amount of marijuana does give off a very strong odor.”43

This testimony in Crosby perfectly demonstrates the basic premise of plain smell;  there is no odor precisely the same as that of marijuana that emits from an item one can legally possess.  That has changed with the legalization of hemp.

Why Does It Matter?

Among the exceptions to the search warrant requirement, plain smell is both the easiest to assert and the most difficult to combat.  If a police officer is willing to testify that they detected the odor of marijuana emitting from a vehicle, it is extremely difficult to persuasively argue otherwise.  Probable cause is an objective determination, considering the information known by the officer at the time of the search.  A search premised on the plain smell of marijuana could be upheld even if no marijuana is subsequently discovered.  As of right now, plain smell allows the warrantless search of a vehicle based solely on the odor and physical properties of a completely legal product, hemp.
    The Tennessee Bureau of Investigation, however, has recognized recently that no law enforcement officer can visually tell the difference between the illegal hemp and illegal marijuana – nor can its officers or its K-9s detect the difference odor (as is explained in our discussion of terpenes above).44

Looking Forward

Given the developments in the legal landscape and growth of the hemp market, the odor of cannabis can no longer provide probable cause to search a vehicle or get a warrant because no human being (or drug dog) can smell or visually distinguish between illegal marijuana and legal hemp.
A recent Pennsylvania trial court order granting a qualified medical marijuana patient’s motion to suppress the search of his vehicle on the sole basis of marijuana odor included this summary of expert testimony:

“Dr. Gordon explained that there is no distinguishable physical difference between the green leafy medical marijuana and regular marijuana purchased on the streets.  Indeed, the chemical compositions are the same...”45

The court ruled that the smell of marijuana was no longer per se indicative of a crime.46 

Many jurisdictions that have either decriminalized or legalized possession of marijuana in small amounts have litigated similar versions of this issue.47 In ruling that the odor of marijuana alone could not support the warrantless search of an automobile, the Supreme Judicial Court of Massachusetts held:

“In sum, we are not confident […] that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct form an amount subject only to a civil fine.  In the absence of reliability, ‘a neutral magistrate would not issue a search warrant, and therefore a warrantless search is not justified based solely on the smell of marijuana whether burnt or unburnt.’” 48

To date, the issue raised in this article has not been litigated and ruled on by any appellate court in Tennessee.  The same argument, however, applies to legal hemp versus marijuana.  A nose cannot reliably discern between the two.

Bi-partisan efforts are currently under way in Tennessee to amend the law to address some of these issues.47 House Bill 274 and Senate Bill 279 seek to de-schedule all hemp-derived products. The legislation also proposes the following addition to Chapter 7 of Title 40 of the Tennessee Code Annotated governing arrests for criminal conduct:

“No person shall be subjected to a search by a law enforcement officer or by another person acting under the direction, supervision, or authority of a law enforcement officer based solely upon the detection of the odor of the cannabis plant, including the odor of any emission produced only by the burning or vaporization of the cannabis plant.”49

The Senate bill was passed on second consideration and referred to the Senate Judiciary Committee on January 31, 2019 and remains there.  The House bill has been in the Constitutional Protections and Sentencing Subcommittee of the House Judiciary Committee since April 3, 2019.  This legislation, if passed, will codify the death of plain smell in Tennessee with respect to state courts.  It will have no impact on the federal courts. It will also have no impact on plain view searches or seizures, which are as prevalent as plain smell cases. If the legislation does not pass, an appellate court case must be brought to challenge the decayed constitutionality of warrantless searches based on plain smell.  In the interim, District Attorneys General should instruct their prosecutors to dismiss cases where officers collected evidence through searches based solely on plain smell.50

Remember Investigator Smith’s testimony from the Crosby case discussed supra, “[T]here’s no other smell like [marijuana]”?  This critical premise to the plain smell doctrine is no longer true. Hughes and its progeny, holding probable cause can be established solely by the distinct odor of marijuana, can no longer stand as good law.51  By the thousands, citizens are now frequently and legally in possession of hemp that smells like marijuana, look like marijuana, and smoke like marijuana.   

In other words, the distinct odor we should all detect is the death of plain smell.52

Cynthia A. Sherwood is a graduate of Vanderbilt School of Law where she received her law degree, and Delta State University where she received a bachelor’s in political science.  She began her career at Neal & Harwell PLC, where she worked for a decade, before starting her own firm, Sherwood Boutique Litigation PLC, in 2010. Sherwood is a criminal defense attorney.

Davis F. Griffin is a graduate of Belmont University College of Law where he received his law degree, and the University of Georgia where he received bachelor’s degrees in journalism and in history.  While at Belmont, he served as research assistant to now United States Attorney Donald Q. Cochran. After three years as a solo practitioner in criminal and general civil litigation, Griffin joined Sherwood Boutique Litigation PLC as an associate attorney in September 2018.

Alexander H. Mills serves as director of operations and general counsel at High Plains Crop Production LLC. He received his law degree from Belmont University College of Law; and a bachelor’s in psychology from Western Kentucky University. He served as law clerk to the honorable W. Neal McBrayer at the Tennessee Court of Appeals, Middle Section, before joining the health care regulatory practice group at Waller, Lansden, Dortch & Davis.

1.See e.g., State v. Hughes, 544 S.W.2d 99, 101 (Tenn. 1976) (distinctive odor of marijuana). The doctrine of plain smell alone being sufficient for probable cause, however, has not been adopted in every jurisdiction. See Michael A. Sprow, Wake Up and Smell the Contraband: Why Courts that do not Find Probable Cause Based on Odor Alone Are Wrong, 42 Wm. & Mary L. Rev. 289 (2000).
2. The plain smell doctrine is a corollary of the plain view doctrine. Unlike the plain smell doctrine, the plain view doctrine, has been adopted by the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443 (1971). The Tennessee Supreme Court adopted the doctrine the following year in Armour v. Totty, 486 S.W.2d 537 (Tenn. 1972). The plain view doctrine in Tennessee is just as dead as the plain smell doctrine because hemp is as visually indistinguishable from marijuana as it is on the basis of odor, e.g. “I observed a green, leafy substance.”; See n 21.
3. See e.g., State v. Meadows, 2016 Tenn. Crim. App. LEXIS *10, **20-27 (Tenn. Crim. App. Jan. 11, 2016) (allowing warrantless search of home under the exigent circumstances exception to the warrant requirement based on agent’s testimony that he knew that the odor was methamphetamine based on its “distinguishable” odor which he described as unlike any other odor.”)
4. See e.g., Pong Ying v. United States, 66 F.2d 67, 67-68 (3d Cir. 1933) (holding that narcotics officer's detection of the odor of burning opium justified a warrantless search); New Jersey v. Schubert, 561 A.2d 1186, 1192 (N.J. Super. 1989) (holding that the strong odor of gasoline emanating from car of arson suspect created probable cause to search the vehicle).
5. Agriculture Improvement Act of 2018, H.R. 2, 115th Cong. (2018).
6. Shannon Smith, New TBI testing can tell the difference between marijuana and hemp, (October 30, 2019, 7:02 PM) (quoting Tommy Farmer, TBI's Special Agent in Charge over the Tennessee Dangerous Drugs Task Force) at https://www.wbir.com/article/news/new-tbi-testing-can-tell-the-differenc....
7. Becky Campbell, TBI crime lab inundated with marijuana vs hemp tests, agents want more resources and regulations, (November 3, 2019, 6:50 PM) (quoting Mike Lyttle, TBI’s Assistant Director of the Forensic Services Division) at https://www.johnsoncitypress.com/law-enforcement/2019/11/03/TBI-crime-la....
8. North Carolina State Bureau of Investigation, industrial Hemp/CBD Issues, available at https://www.sog.unc.edu/sites/www.sog.unc.edu/files/doc_warehouse/NC%20S... (last visited Nov. 1, 2019).
9. Iris Dorbian, CBD Market Could Reach $20 Billion By 2024, Says New Study, (May 20, 2019 12:49 PM) at https://www.forbes.com/sites/irisdorbian/2019/05/20/cbd-market-could-rea....
10. Agriculture Act of 2014, H.R. 2642, 113th Cong. (2014).
11. Agriculture Act of 2014, H.R. 2642, 113th Cong. § 7606(b)(2) (2014).
12. 21 U.S.C. §§ 801.
13. “Marihuana” here is spelled using an “h” instead of the common “j” spelling because when the Controlled Substances Act was originally drafted the “h” spelling was the common spelling.
14. 21 U.S.C. § 802(16) (2014) (current version at 21 U.S.C. § 802(16)(A)-(B) (2019)).
15. Id.
16. Agriculture Act of 2014, H.R. 2642, 113th Cong. § 7606(a)-(b).
17. HB 2445, 108th Gen. Assemb., (Tenn. 2014).
18. Tenn. Code Ann. § 39-17-402(16)(c).
19. Tenn. Comp. R. & Regs. 0080-06-28 (2015).
20. Agriculture Improvement Act of 2018, H.R. 2, 115th Cong. (2018).
21. Agriculture Improvement Act of 2018 § 12619(a)(2).
22. 7 U.S.C. § 1639(o)(1).
23. T.C.A. § 39-17-1503(4).
24. T.C.A. § 39-17-1503(10).
25. The Medicinal Uses of Cannabis and Cannabinoids, 74 (Geoffrey William Guy, Brian Anthony Whittle, Philip Robson, eds., 1st ed. 2004); USDA Natural Resources Conservation Service, Classification for Kingdom Plantae Down to Genus Cannabis L. available at https://plants.usda.gov/java/ClassificationServlet?source=display&classi... (last visited Sept. 20, 2019).
26. 7 U.S.C. § 1639(o)(1).
27. Aizpurua-Olaizola O, Soydaner U, Ozturk E, Schibano D, Simsir Y, Navarro P, Etxebarria N, Usobiagga A, Evolution of the Cannabinoid and Terpene Content during the Growth of Cannabis sativa Plants from Different Chemotypes, 79(2) Journal of Natural Products, 324-331 (2016), available at https://www.ncbi.nlm.nih.gov/pubmed/26836472; Christelle M. Andre, Jean-Francois Hausman, Cea Guerriero, Cannabis sativa: The Plant of the Thousand and One, Frontiers in Plant Science 7, 19 (2016) available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4740396/.
28. Christelle M. Andre, Jean-Francois Hausman, Cea Guerriero, Cannabis sativa: The Plant of the Thousand and One, Frontiers in Plant Science 7, 19 (2016) available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4740396/; Ethan B. Russo, Taming THC: Potential cannabis synergy and phytocannabinoid-terpenoid entourage effects, 163 British Journal of Pharmacology, 1344-1364, (2011), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3165946/.
29. Ethan B. Russo, Taming THC: Potential cannabis synergy and phytocannabinoid-terpenoid entourage effects, 163 British Journal of Pharmacology, 1344-1364, (2011), available at
30. The largest law enforcement association in Texas circulated an internal memo in July 2019 stating that state crime labs did not have the resources to determine whether seized marijuana contained a legal or illegal amount of THC. (Randall Prince, Texas Department of Public Safety Deputy Director, Interoffice Memorandum on HB 1325
Enforcement Guidance, available at
https://static.texastribune.org/media/files/6bb887232ae43ab238d88d50d18b196f/DPS-citerelease2019.pdf (last
visited September 4, 2019)). Multiple law enforcement agencies in Florida including the State Attorney’s offices and the Miami-Dade Police Department have issued similar memos. (Jerry Iannelli, Miami-Dade Cops Won’t Stop People for “Weed Smell” Alone Thanks to New Law, (July 10, 2019, 12:44 PM) at https://www.miaminewtimes.com/marijuana/miami-dade-police-says-cops-cant...). In particular, Florida’s Martin County Sheriff has instructed his agency not to make “marijuana arrests” due to the inability to test for THC concentration. (Michael Williams, Florida’s New Hemp Law Is Changing How Seminole, Brevard Prosecutors Handle Marijuana Crimes (July 18, 2019, 5:54 PM) at https://www.orlandosentinel.com/news/breaking-news/os-ne-seminole-brevar....)
31. Memorandum, Tennessee Bureau of Investigation Assistant Director, Mike Lyttle (August 26, 2019).
32. Id.
33. Id.; Furthermore, a conviction without chemical testing has been upheld by the Tennessee Supreme Court. In State v. White the Court held the arresting officer’s testimony alone without a corroborating field test was sufficient to convict Mr. White of simple possession. State v. White, 269 S.W.3d 903, 907 (Tenn. 2008). The officer testified that that the substance he found in the search of Mr. White’s vehicle was in fact marijuana based on his experience. Until White, the law in Tennessee was that an officer’s testimony was sufficient to identify marijuana beyond a reasonable doubt when accompanied by a field test indicating the substance was, in fact, marijuana. State v. Anderson, 644 S.W.2d 423, 424 (Tenn. Crim. App. 1982). Officer testimony had also been found sufficient to establish that a substance was marijuana when corroborated by a defendant’s admission or the discovery of drug paraphernalia associated with the use of marijuana. State v. Primm, 1998 Tenn. Crim. App. LEXIS 1271, at *2 (Tenn. Crim. App. Dec. 9 1998); State v. Townsend, Tenn. Crim. App. LEXIS 433, at *2 (Tenn. Crim. App. July 14, 1994). The officer’s testimony in White was accompanied by no field test, admission from the defendant, or discovery of drug paraphernalia.
34. Memorandum, Tennessee Bureau of Investigation Assistant Director, Mike Lyttle (August 26, 2019).
35. Michael Jacobs, Cannabis and Terpenes: What is the Difference?, Terpenes and Testing, at https://terpenesandtesting.com/cannabinoids-terpenes-difference/ (last visited Sept. 20, 2019).
36. Grace Kaucic, Everything You need to Know About Terpenes and Hemp, Bluebird Botanicals, (Jan. 14, 2019, 10:04
AM) at https://bluebirdbotanicals.com/everything-about-terpenes.
37. Michael Jacobs, The Difference Between Cannabinoids and Terpenes, Analytical Cannabis, (Feb. 21, 2019), at https://www.analyticalcannabis.com/articles/the-difference-between-canna... What are Terpenes? Terpenes in hemp, CannabiGold, at https://cannabigold.pl/en/knowledge/what-are-terpenes-terpenes-in-hemp/ (last visited Sept. 20, 2019).
38. Beta-Caryophyllene-the terpene detected by dogs, Philosopher Seeds, (Nov. 21, 2018) at
39. Id.
40. Hicks v. State, 534 S.W.2d 872, 873 (Tenn. Crim. App. 1975).
41. Interestingly, the case also dealt with the chemistry of the plant found in Hicks’s van. The Court held “the question of whether the term ‘cannabis sativa L’ includes all forms of marijuana has been increasingly litigated in the courts […] We accordingly hold that cannabis sativa L includes all geographical types of marijuana and overrule this assignment [of error].” Hicks, 534 S.W.2d at 874.
42. 544 S.W.2d 99, 101 (Tenn. 1976).
43. State v. Crosby, 2014 Tenn. Crim. App. LEXIS 881, *6 (Tenn. Crim. App. September 9, 2014) (emphasis added).
44. See nn. 6-8.
45. Commonwealth of Pennsylvania v. Timothy Oliver Barr, II, No. 279-2019, (Court of Common Pleas of Lehigh County, Pennsylvania, August 2, 2019), available at https://assets.documentcloud.org/documents/6246965/Commonwealth-of-PA-vs-Timothy-O-Barr.pdf
46. Id.
47. People of the Virgin Islands v. Cannergeiter, 65 V.I. 114 (V.I. Sup. Ct. 2016) (holding legislature’s enactment of V.I. Code Ann. Tit. 19 § 607(a) decriminalizing the possession of one ounce or less of marijuana in the Virgin Islands did not preclude law enforcement officers trained in the identification of marijuana odor from stopping a vehicle based on the detection of such odor); State v. Cabrera, 2016 R. I. Super. LEXIS 85, *22 (R.I. Sup. Ct. July 21, 2016) (holding that after R.I. Gen. Laws § 21-28-4.01(c)(2)(iii) decriminalized possession of marijuana but it remained a controlled substance so its odor could be part of a probable cause analysis while its odor alone would be insufficient to establish probable cause to search a vehicle, i.e. “odor-plus”); State v. Smalley, 225 P.3d 844, 269-270 (Ore. App. 2010) (holding that, although possession of less than an ounce of marijuana is a civil violation not a criminal offense, marijuana falls within the definition of contraband regardless of its quantity and therefore its odor alone justifies an immediate, warrantless search of a vehicle); State v. Sisco, 373 P.3d 549 (Ariz. 2016) (given the adoption of the Arizona Medical Marijuana Act authorizing qualified patients to possess up to two and one-half ounces of marijuana, the odor of marijuana suffices to establish probable cause to issue a search warrant unless other facts would cause a reasonable person to believe the marijuana use or possession is authorized by AMMA dispelling probable cause, i.e. “odor-unless”); Robinson v. State, 152 A.3d 661 (Md. 2017) (holding despite the decriminalization of possession of less than 10 grams of marijuana in Maryland, a law enforcement officer still has probable cause to search a vehicle when the officer detects the odor of marijuana emanating from the vehicle because marijuana in any amount is still contraband) Zullo v. State, 2019 Vt. LEXIS 1, * (Vt. January 4, 2019) (holding that after the decriminalization of adult possession of less than once ounce of marijuana, its odor is a relevant factor in the determination of probable cause to search a vehicle but alone is insufficient, i.e. “odor-plus”); People v. Waxler, 224 Ca. App. 4th 712 (Cal. App. 1st. 2014) (holding defendant’s possession of a medical marijuana card did not preclude warrantless search of his vehicle where officer smelled burnt marijuana coming from vehicle and observed a pipe inside the vehicle because the observation of any amount of marijuana which is still illegal to possess in any amount may establish probable cause to search unless use is authorized under Compassionate Use Act of 1996); People v.. Zuniga, 372 P.3d 1052 (Colo. 2016) (holding although possession of one ounce or less of marijuana is allowed under Colorado law, the odor of marijuana is a relevant factor under the totality of circumstances that can contribute to a probable cause determination);
People v. Rice, 2019 Ill. App. LEXIS 255 (Ill. App. April 16, 2019) (holding notwithstanding decriminalization of possession of small amount of marijuana it still remained unlawful under the Cannabis Control Act thus officer’s detection of odor of cannabis alone justified probable cause search of defendant’s vehicle).
48. Commonwealth v. Overmyer, 11 N.E.3d 1054, 1060 (Mass. 2014).
49. H.R. 274, 111th Leg., 2019-2020 (Tenn. 2019); S. 279, 111th Leg., 2019-2020 (Tenn. 2019).
50. This applies equally to plain view cases.
51. Further, State v. White can no longer stand as good law because no officer can know by smell or sight whether a substance is actually marijuana beyond a reasonable doubt; See n. 33.
52. At the very least, courts must adopt an “odor plus” standard. This topic is developing on a weekly basis. The authors submit that issues may develop during the publication process that could bear upon and effectively alter the observations and conclusions made herein.


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