NASHVILLE, Tenn. — Hemp is legal in Tennessee, for starters; marijuana is not. But both look and smell rather similar, which can confuse drug-sniffing canines.
A drug-sniffing dog had it easy for decades: smell marijuana, then notify the cop. But in the last couple of years that changed. Although hemp has become legal and marijuana is still banned, both have an unpleasant smell. According to Ben Raybin, a criminal defense attorney, this confused police dogs somewhat.
“The defense lawyers have been trying to make the argument that, ‘Hey, that shouldn’t be enough to arrest somebody, because it can be a perfectly legal product,'” said Raybin.
Hemp is authorized. It does not offer consumers a high and has rather modest THC content. On the other hand, marijuana is banned since it can cause one to get high and contains strong levels of THC. Both, however, are officially cannabis and smell like one another. What then are police and police dogs to do? The Tennessee Supreme Court lately got involved.
A suspect argued police dogs shouldn’t have searched him since odor alone cannot tell whether he used legal or illegal marijuana. The court reiterated that a search needs more than one justification.
Representing the Tennessee Association of Criminal Defense Lawyers, Raybin penned the amicus brief.
“The Tennessee Supreme Court has realized that by stating that probable cause is always based on the circumstances and not just one thing,” said Raybin. “It ultimately is a good thing for the citizens of Tennessee, generally speaking, just because it makes it harder for us to get stopped and searched just from an odor of something you may be doing totally legally.”
However, traffic safety resource prosecutor attorney Linda Sharer notes that this is not exactly a sea shift; the ruling is merely the court reaffirming what has always been police dog policy.
“Probable cause has always been decided depending on the totality of the circumstances,” stated Sharer. “The dog smell; the hint from the dog itself will just be a factor in that equation. Always as it has always been.
