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The Death of the Plain Smell Doctrine?

On Behalf of | Apr 19, 2020 | Firm News

As I read the article, Even Dogs Can’t Smell the Difference by Cynthia A. Sherwood, Davis S. Griffin, and Alexander H. Mills in the Tennessee Bar Journal, I began to realize what the ramifications of the legalization of hemp in Tennessee means for the future of plain smell probable cause. Also known as the plain smell doctrine, it is where a distinctive smell can provide the threshold necessary for police to obtain a search warrant; or conduct a search or seizure of a vehicle or residence under the automobile or exigent circumstances exceptions to the warrant requirement. One may ask, “What does the legalization of hemp in the state of Tennessee have to do with the plain smell doctrine?” Let us begin with a recent history lesson and scientific facts.

In Tennessee, hemp was legalized on February 7, 2014 with the passing of the Agricultural Improvement Act of 2014 (the 2014 Farm Bill). The Tennessee Code was amended on May 13, 2014, allowing the growth of hemp with the Department of Agriculture to enforce certain regulations. On December 20, 2018, the Agricultural Improvement Act was passed and clarified, once and for all, that hemp is a Federally legal crop separate from its relative marijuana. Tennessee’s definition of hemp was established in 2019, and it is the exact same as the Federal definition. Hemp, like marijuana, contains THC and also has a similar appearance and odor. It is only logical for the plants to share these similarities since they are both in the cannabis family. Tennessee amended its code stating hemp can be smoked in the same manner as marijuana. The only defining difference between hemp and marijuana is hemp has .3 percent or less THC, while marijuana has more; and the only way to tell the difference is to test it in a laboratory.

When police come across hemp in a vehicle or a residence, a potential problem presents itself. People could start getting arrested for possessing a legal substance. The untrained eye and K-9 drug dogs cannot tell the difference. There are ways to field test hemp; however, the testing equipment can be quite expensive for rural police units to fit in their budget. A defendant gets arrested or cited for possessing hemp, once it is sent to a laboratory and tested, the defendant will be cleared of the charge. No harm, no foul right? Sure, if it only happens once, but what happens when said defendant gets arrested by another officer who was not involved in the prior arrest? The new officer does not know the defendant uses hemp; or perhaps the defendant gets arrested again by the prior arresting officer, who refuses to give them the benefit of the doubt. This is where police not being able to tell the difference becomes a problem. Getting arrested is a traumatic event for the average person. It is embarrassing, stressful, inconvenient, expensive, and disheartening. Especially if you have not committed a crime.

The State of Tennessee cannot allow the police to get in the habit of arresting people for having a legal substance simply because police cannot afford the proper equipment or training to tell the difference. Tennessee also cannot allow it to happen because the legislature refuses to legalize marijuana. As the old saying goes, you cannot get your cake and eat it too; therefore, the legislature either needs to provide funding to police to be properly equipped for the task at hand or legalize marijuana. One could argue the legislature could make hemp illegal again. Well, good luck trying to put the genie back in the bottle. Making hemp illegal again would only strengthen the view of the government as being out of touch with reality, lacking common sense, only caring about the money that comes from fines in marijuana convictions, and living in lobbyists’ pockets.

In other states, Courts have already started addressing the inevitable end of the plain smell doctrine in regard to marijuana. They have started suppressing evidence that was found on the sole basis of the smell of marijuana and have ruled it is no longer per se indicative of a crime. Tennessee Courts to date have not litigated or ruled on the issue of the plain smell doctrine in regard to marijuana, but it is only a matter of time before the death of the plain smell doctrine occurs. Thus, providing another layer of protection to citizens from government overreach and another step towards the eventual legalization of marijuana in Tennessee.