State of Tennessee v. Andre JuJuan Lee Green

This appeal presents the issue of how the legalization of hemp affects a probable cause analysis where law enforcement relied, in part, on a positive alert from a drug-sniffing canine incapable of differentiating between the smell of legal hemp and illegal marijuana. After initiating a routine traffic stop, law enforcement conducted an open-air sniff using a drug-sniffing canine. Based on the canine’s positive alert on the vehicle, combined with other facts observed by the officer, law enforcement searched the vehicle without a warrant pursuant to the automobile exception to the warrant requirement. The search revealed the following items inside a backpack: one ounce of marijuana, a loaded handgun, Ziploc bags, and a scale. The defendant, a passenger in the vehicle, was indicted for possession of marijuana with intent to manufacture, sell, or deliver; possession of a firearm with intent to go armed during the commission of a dangerous felony; and possession of drug paraphernalia. The defendant filed a motion to suppress, arguing that the canine sweep could not provide probable cause because the canine could not distinguish between the smell of legalized hemp and illegal marijuana. The trial court granted the motion to suppress and dismissed the charges against the defendant. The Court of Criminal Appeals reversed by holding that the smell of illegal marijuana provides law enforcement with probable cause to search a vehicle. Alternatively, the intermediate court held that law enforcement possessed probable cause based on the totality of the circumstances. The defendant appealed to this Court, and we granted review. First, we clarify that State v. England, 19 S.W.3d 762 (Tenn. 2000), does not provide a per se rule of probable cause based on a positive indication from a drug-sniffing dog. Rather, England provides for an examination of the totality of the circumstances. Second, we hold that a positive indication from a drug-sniffing canine may continue to contribute to a finding of probable cause when examining the totality of the circumstances, notwithstanding the legalization of hemp. After examining the totality of the circumstances in this case, we conclude that law enforcement possessed probable cause to search the vehicle. As a result, we affirm the judgment of the Court of Criminal Appeals reinstating the indictments against the defendant and remanding for further proceedings.