Nashville, Tenn. – The Tennessee Supreme Court today clarified that an alert from a trained drug-sniffing dog can be part of law enforcement’s probable cause for a search even though the dog cannot tell the difference between illegal marijuana and legal hemp.
On February 16, 2020, law enforcement stopped a car in a routine traffic stop in Clarksville, Tennessee. As he approached the vehicle, Officer Andrew Trescott smelled a “strong odor.” The driver of the vehicle, Julio Chavez, said the odor was from three pine tree air fresheners.
Officer Trescott saw a backpack in the car between the feet of the passenger, Andre JuJuan Lee Green, and asked about it. Both Mr. Chavez and Mr. Green responded that the bag did not belong to them. Officer Trescott then had a dog, specially trained to detect illegal drugs, conduct a sniff test around the outside of the car. The dog alerted to the vehicle, meaning that the dog indicated he smelled illegal drugs.
Eventually, Mr. Green told Officer Trescott that he had picked up the backpack from his brother, but he did not know what was inside. Officer Trescott searched the backpack and discovered one ounce of marijuana, a loaded Smith & Wesson 9mm firearm, Ziploc bags, and a working scale. Mr. Green was charged with, among other things, possession of marijuana with intent to sell, and possession of a firearm with intent to go armed during a dangerous felony.
Before his trial, Mr. Green filed a motion to suppress, that is, he asked the trial judge to bar prosecutors from using evidence at his trial from the search of the backpack. Under the constitution, law enforcement must have probable cause to conduct a search. Mr. Green argued that the trained drug-detecting dog could not tell the difference between illegal marijuana and hemp. In 2019, hemp was made legal in Tennessee; it comes from the same type of plant as marijuana but contains such a low amount of psychoactive chemicals that it cannot be used to get “high.” Because the trained dog could not tell the difference between marijuana and hemp, Mr. Green argued, the dog’s “alert” on his car could not be part of law enforcement’s probable cause to search it. If probable cause was lacking, the search was unconstitutional, and prosecutors should be barred from using evidence from the search in his trial.
The trial court agreed with Mr. Green and granted his motion to suppress the evidence. The State appealed and the Court of Criminal Appeals reversed. The intermediate appellate court held that an alert from a trained drug-detection dog, by itself, is sufficient to provide probable cause for the search. Alternatively, the Court of Criminal Appeals held that law enforcement had probable cause based on the totality of the circumstances. The Tennessee Supreme Court granted Mr. Green’s application for permission to appeal.
First, the Supreme Court clarified that its earlier decision in State v. England, 19 S.W.3d 762 (Tenn. 2000), did not establish a rule that a positive alert from a trained drug-sniffing dog is, by itself, enough to be probable cause for a search. Instead, the England case held that courts determine probable cause based on a totality of the circumstances, and a positive indication from a drug-sniffing dog is part of the total circumstances. For Mr. Green’s case, the Court then held that, even though hemp is now legal in Tennessee and trained drug-detecting dogs cannot tell the difference between marijuana and hemp, a positive alert from a drug-sniffing dog may continue to be part of the total circumstances for a finding of probable cause. The Court reasoned that, even though Tennessee’s decision to legalize hemp made the dog alert less certain, probable cause does not demand absolute certainty and an alert from a drug-sniffing dog still shows a likelihood that illegal drugs are present.
For the car Mr. Green was in, the Court pointed out that, in addition to the dog alert, Officer Trescott observed other suspicious facts, such as the presence of a backpack between Mr. Green’s feet where both Mr. Green and the driver denied it belonged to them. Considering the total circumstances, the Court held that law enforcement possessed probable cause to search the vehicle, so the search was not unlawful. The Court reversed the trial court’s decision to grant Mr. Green’s motion to suppress evidence from the search.
To read the unanimous opinion in State of Tennessee v. Andre JuJuan Lee Green, authored by Justice Roger A. Page, visit the opinions section of TNCourts.gov.