Does the Smell of Marijuana Still Establish Probable Cause or Does Legalized Hemp Change the Legal Landscape?

The fact that illegal marijuana and legal forms of hemp have the same odor is irrelevant so long as some forms of marijuana remain illegal. Thus, Moore remains good law and any detection of the odor would give probable cause to search. State v. Withrow, 2022-Ohio-2850.

State v. Tillman

2022 – Ohio – 4341

Fifth District Appellate Court

Licking County, Ohio

December 5, 2022

An oral hearing on the Motion to Suppress was held on December 21, 2021. At the hearing, Deputy Dustin Prouty of the Muskingum County Sheriff’s Office testified that he was attached to the Central Ohio Drug Enforcement Task Force and did drug interdiction work. He testified that on April 23, 2021, he was in uniform in a marked cruiser watching for drug smugglers when he noticed a suspicious car traveling eastbound on State Route 70. He testified that he believed the car was suspicious because the driver put both hands on the wheel and sat back in his seat as he approached the officer. Deputy Prouty notified Detective Justin Woodyard about his observations and decided to follow the vehicle. He witnessed the car exit the highway and pull into a gas station. Deputy Prouty later followed the vehicle back onto the highway at which time he observed the vehicle traveling significantly over the speed limit. As a result, the deputy pulled the vehicle over. Detective Woodyard showed up around the same time as the stop.

Deputy Prouty testified that when he made contact with the driver of the vehicle, who was Mr. Idrissa Tillman, he “[I]mmediately could smell a strong odor of raw marijuana.” Deputy Prouty had Mr. Tillman and his two passengers exit the vehicle. Deputy Prouty indicated to Mr. Tillman that he was conducting a probable cause search based on the smell of marijuana. Deputy Prouty testified that Mr. Tillman got agitated and told him that “[Y]ou don’t smell marijuana—there’s no marijuana in there [his vehicle].” Upon searching the vehicle, Deputy Prouty found a large amount of vacuum sealed bags in the trunk with marijuana inside in direct contradiction to Mr. Tillman’s statement that there was no marijuana in his vehicle. Deputy Prouty also found a bag full of marijuana edibles. Mr. Tillman and his two passengers were arrested. On cross-examination, Deputy Prouty testified that a bag of marijuana and a marijuana cigarette were found in the cabin of the vehicle.

Detective Justin Woodyard of the Licking County Sheriff’s Office testified that he was assigned to the Central Ohio Drug Enforcement Task Force. He testified that he was working undercover on drug interdiction on April 23, 2021, when he received information from Deputy Prouty. He testified that Deputy Prouty informed him that he had observed criminal indicators. Detective Woodyard responded to the scene and observed Mr. Tillman who was pumping gas. After Mr. Tillman’s vehicle left the gas station, the Detective observed Mr. Tillman speeding and failing to use his turn signals. Once Deputy Prouty pulled Mr. Tillman’s vehicle over, Detective Woodyard arrived at the traffic stop. He testified when he approached the driver’s side door, he immediately “[D]etected the odor of raw marijuana emitting from the vehicle.” When Mr. Tillman exited the vehicle, he told Detective Woodyard that there was a bag of marijuana in the driver’s side door pocket. Marijuana was found in that location and a marijuana joint was found in the center console. Detective Woodyard testified that this occurred after Mr. Tillman was informed that a probable cause search was going to be conducted and he was ordered out of his vehicle. There was SO much marijuana in this vehicle the only people missing were Cheech, Chong and Snoop Dogg.

On cross-examination, Detective Woodyard testified that he was trained that because hemp was indistinguishable from marijuana without a lab test, all suspected marijuana needed to be sent to the lab for further testing for confirmation.

At the conclusion of the hearing, the trial court denied both Mr. Tillman’s motion for expert witness fees as well as Mr. Tillman’s Motion to Suppress. The trial court, in denying the first motion, stated, in relevant part, as follows:

THE COURT: All right. Well, let—let me address the issue of a –on a- – of an expert. I don’t think an expert here is – – is necessary. I’ll accept the contention that there’s no – – for the purpose of – – argument, that there’s no distinction between the odor of raw – – of hemp and marijuana. I’ll take that as true. But even if I do that, that does not mean that the case law – – um – – holding that an odor – – an overwhelming odor – – a powerful odor of raw marijuana authorizing a warrantless search of a vehicle all of the sudden comes to an end. I – – I – – there’s no case that says it does.

Even though hemp is now – – uh – – recognized as legal, it’s still highly regulated and I will point to – – uh – – Code Section 928, et seq. – – uh – – which is the codified version of the legalization of hemp. However, um – – the cultivation and processing of hemp require licenses that required – – they’re required to be issued by the Department of Agriculture.

So, even though it may be legal now to possess hemp or hemp-related products, that doesn’t mean – – uh – – that it itself is still not a highly regulated product or commodity, or – – um – – process; it is – – it is. You have to have a license to process it, you have to be licensed to cultivate it, and there’s even a regulation or a statute that prohibits the transportation of hemp in violation of rules adopted under 928.03. I’m not sure what those rules are, but – – uh – – the fact that it’s still a highly regulated commodity, I think undercuts this notion or this argument that since hemp is legal and there’s no distinction between marijuana and hemp, the case law that says the odor of raw marijuana authorizing a search warrant or a warrantless search of a vehicle now is – – is – – us – – pointless or has no – – uh – – justification anymore, I just don’t see it that way. So that’s why I’m not going to grant the Motion for an Expert. I understand. I’ll accept argument – – uh – – arguendo this notion that there’s no distinction. Even if there’s not, I believe the overwhelming odor – – uh – – powerful odor of raw marijuana or hemp coming from a motor vehicle will – – uh – – under the case law still authorize a police officer to search.

The trial court, in denying the Motion to Suppress, found that Mr. Tillman’s driving justified a traffic stop. The trial court noted that there was testimony that Mr. Tillman drove on the berm to get onto the entrance to the ramp and that Mr. Tillman was traveling in excess of 100 miles per hour. The trial court further found that Mr. Tillman’s admission that there was marijuana in the driver’s side door at “about the same time or before” the trunk was searched” in combination with the strong odor of marijuana authorized the warrantless search of the vehicle.

On January 27, 2022, Mr. Tillman withdrew his former not guilty plea and entered a plea of no contest to Possession of Marijuana [F-3] and Trafficking in Marijuana [F-3]. Pursuant to a Judgment Entry filed on March 7, 2022, Mr. Tillman was placed on community control for a period of three years and was fined $5,000.00. In addition, Mr. Tillman’s driver’s license was suspended for one year and Mr. Tillman was ordered to forfeit $10,788.00.

Mr. Tillman now raises the following assignments of error on appeal: Mr. Tillman, in his first assignment of error, argues that the trial court erred in denying his Motion to Suppress because the search of his vehicle was not supported by probable cause or the probable cause was only for a minor violation. We disagree.

Mr. Tillman, in the case sub judice, does not challenge the initial stop of his vehicle, but argues that the search of his vehicle was not supported by probable cause. Generally, “[F]or a search or seizure to be reasonable under the Fourth Amendment, it must be based upon probable cause and executed pursuant to a warrant.” State v. Moore, 2000 – Ohio – 10. However, “[T]he smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to search a motor vehicle”, pursuant to the automobile exception to the warrant requirement. There need not be other tangible evidence to justify a warrantless search of the vehicle.

At the suppression hearing, Detective Woodyard testified that he smelled the “[O]dor of raw marijuana emitting from the vehicle.” He testified that had dealt with marijuana thousands of times in his seventeen-year career in law enforcement and that he was familiar with the smell of marijuana. Deputy Prouty testified that he had handled drugs and had seen and smelled a lot of marijuana throughout his career. Because both testified that they had experience detecting the smell of marijuana, the standard in Moore has been satisfied. “The fact that illegal marijuana and legal forms of hemp have the same odor is irrelevant so long as some forms of marijuana remain illegal. Thus, Moore remains good law and any detection of the odor would give probable cause to search.” State v. Withrow, 2022-Ohio-2850.

Mr. Tillman’s first assignment of error is, therefore, overruled.

Information for this article was obtained from State v. Tillman, 2022 – Ohio – 4341.

This case was issued by the Fifth District Appellate Court and is binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.

Lessons Learned:

The Fifth District Appellate Court determined that if a law enforcement officer smells marijuana that in and of itself establishes probable cause. This was originally established by the Supreme Court of Ohio in State v. Moore, 2000-Ohio-10 “[T]he smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to search a motor vehicle”. Then in January 2020 the state legalized hemp, which has the same or similar smell both as packaged or burning marijuana. The hemp legalization complicated the holding in Moore and whether the smell of packaged or burning hemp/marijuana would still establish probable cause. In this case, the Fifth District Appellate Court held distinguishing the difference between hemp and marijuana was not required by law enforcement as the court held “Because both testified that they had experience detecting the smell of marijuana, the standard in Moore has been satisfied. “The fact that illegal marijuana and legal forms of hemp have the same odor is irrelevant so long as some forms of marijuana remain illegal. Thus, Moore remains good law and any detection of the odor would give probable cause to search.” State v. Withrow, 2022 – Ohio – 2850.
On July 7, 2022, the Sixth Circuit [federal] Appellate Court had an analogous holding “Nor is it compelling that the marijuana odor could have been a legal substance, like hemp, instead of illegal marijuana. Reasonable suspicion, remember, does not require proof that the suspect committed a crim”. U.S. v. McCallister, No. 21 – 4011. See Can the Odor of Marijuana Still be Used to Detain a Suspect?.
Neither this court in Tillman or the McCallister court specifically addressed whether the holding applies to canine sniffs. However, it only makes legal sense that both holdings would apply to canines. I do caution that each canine officer consult with his prosecutor as to whether he will support a canine alert on marijuana.
Both Deputy Dustin Prouty and Detective Justin Woodyard should be commended for their tenacity and investigative prowess. Well done!