State of Tennessee v. Andre JuJuan Lee Green

08/27/2024

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

April 3, 2024 Session1

STATE OF TENNESSEE v. ANDRE JUJUAN LEE GREEN

Appeal by Permission from the Court of Criminal Appeals

Circuit Court for Montgomery County

No. CC20-CR-537 Robert Bateman, Judge

___________________________________

No. M2022-00899-SC-R11-CD

___________________________________

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

1

We heard oral argument in this case at Cecil C. Humphreys School of Law in Memphis,

Tennessee.

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.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Affirmed; Remanded to the Trial Court

ROGER A. PAGE, J., delivered the opinion of the court, in which HOLLY KIRBY, C.J., and

JEFFREY S. BIVINS, SARAH K. CAMPBELL, and DWIGHT E. TARWATER, JJ., joined.

Gregory D. Smith and Chason T. Smith, Clarksville, Tennessee, for the appellant, Andre

JuJuan Lee Green.

Jonathan Skrmetti, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor

General; and Benjamin A. Ball, Senior Assistant Attorney General, for the appellee, State

of Tennessee.

Jonathan Harwell and Benjamin K. Raybin, Nashville, Tennessee, for the amicus curiae,

Tennessee Association of Criminal Defense Lawyers; Joseph W. Fuson and Kristen

Johnson, Nashville, Tennessee, for the amicus curiae, Tennessee Growers Coalition.

OPINION

I. FACTS AND PROCEDURAL HISTORY

This case involves a probable cause determination by law enforcement based, in

part, on a positive alert from a drug-sniffing canine incapable of differentiating between

the smell of legal hemp and illegal marijuana. The underlying factual summary as agreed

by both parties is as follows:2

On February 16, 2020, Officer Andrew Trescott completed a traffic

stop on a vehicle being driven by Mr. Julio Chavez for operating his vehicle

on high beams on Crossland Avenue in Clarksville, Tennessee. Mr. Andre

Green was the passenger in the vehicle.

2

This case is before us following the trial court’s granting of a motion to suppress. The transcript

of the suppression hearing is not included in the record on appeal. However, the trial court’s order granting

Andre Green’s (“Defendant”) motion to suppress states that the parties stipulated to the factual summary in

Defendant’s motion. Due to Defendant’s factual summary contained in his motion serving as the basis

upon which the trial court made its ruling, we find it appropriate to quote it in its entirety.

-2-

Officer Trescott made contact with Mr. Chavez first upon approach to

the vehicle. During the interaction, Officer Trescott indicated that he could

smell a strong odor of a fragrance coming from the vehicle. Mr. Chavez told

Officer Trescott that it was from the three fragrance pine trees that he had

hanging off the mirror. Mr. Chavez denied consent to search the vehicle.

Once Mr. Chavez denied consent to search, Officer Trescott ordered both

Mr. Chavez and Mr. Green out of the vehicle. Once they were out of the

vehicle, Officer Trescott made the decision to [call] PSD [police service dog]

Arlo to conduct an open air sniff of the vehicle.

Prior to searching the vehicle, Officer Trescott observed a black

backpack in between his[3] feet. Both occupants initially stated that the bag

did not belong to them. Officer Trescott then had PSD Arlo conduct an open

air [sniff] where the dog indicated on the vehicle. After PSD Arlo indicated

on the vehicle, Officer Trescott asked each occupant if there was anything in

the vehicle, both occupants stated no. Mr. Chavez stated that he did not have

anything in [the] vehicle. Upon being told that he too could be charged with

anything in the vehicle, he immediately looked at Mr. Green and prodded

him to talk. Mr. Green stated that he had picked up the backpack from his

brother but he didn’t know what was in it. A search of the backpack was

completed, Officer Trescott found just below one ounce of marijuana, a

loaded Smith & Wesson 9mm, Ziploc bags and a working scale. Two cell

phones were found on Mr. Green’s person, one was a TCL phone, the charger

for the TCL phone was found in the backpack.

On June 2, 2020, a Montgomery County grand jury indicted Defendant 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. Following his indictment, Defendant filed a motion to suppress

arguing that “a canine sweep is no longer valid to establish probable cause since a canine

cannot distinguish between the smell of hemp, which is legal, and marijuana, which is

illegal.” The trial court granted the motion to suppress by ruling that “[b]ased on the lack

of proof of whether the drug detection canine in this case can distinguish between legal

hemp and illegal marijuana . . . , the Court finds the reliability of the drug detection canine

has not been established.” The court later dismissed the charges against Defendant.

3

In isolation, it is unclear whether the pronoun “his” refers to Mr. Chavez or Defendant. However,

Defendant’s brief to this Court uses a pair of brackets to replace “his” with “Green’s.” Defendant’s

clarification is consistent with how the Court of Criminal Appeals interpreted the record. See State v.

Green, No. M2022-00899-CCA-R3-CD, 2023 WL 3944057, at *3 (Tenn. Crim. App. June 12, 2023), perm.

app. granted (Tenn. Nov 20, 2023) (“Then, when he inquired about the backpack between the defendant’s

feet . . . .”). Furthermore, Officer Trescott’s affidavit of complaint states: “Prior to me searching, I asked

about a backpack that was at Mr. Green’s feet.”

-3-

The State appealed to the Court of Criminal Appeals, arguing that “the trial court

erred in granting the defendant’s motion to suppress because the scent of marijuana

provided probable cause for the search regardless of the possibility that legal hemp could

be the source of the odor.” State v. Green, No. M2022-00899-CCA-R3-CD, 2023 WL

3944057, at *2 (Tenn. Crim. App. June 12, 2023), perm. app. granted (Tenn. Nov 20,

2023). The Court of Criminal Appeals agreed with the State and reversed the trial court’s

ruling. Id. at *4. The intermediate court concluded that “at this juncture the binding

precedent from the Tennessee Supreme Court allows the smell of [illegal] marijuana to

provide probable cause for a search,” citing to State v. Hughes, 544 S.W.2d 99, 101 (Tenn.

1976). Id. at *3. Although the court held that “the alert of a trained drug detection canine

is alone sufficient” to establish probable cause, the court alternatively held that the finding

of probable cause was even more evident when reviewing the totality of the circumstances,

such as Officer Trescott smelling a “strong odor” and both occupants of the vehicle denying

ownership of the backpack between Defendant’s feet. Id.

This Court granted Defendant’s application for permission to appeal to consider

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. To that end, the overarching

question we must answer is whether law enforcement possessed probable cause under the

automobile exception to the warrant requirement to search the vehicle in which Defendant

was a passenger.

II. LEGAL BACKGROUND

The legal analysis of this case involves the distinction between hemp and marijuana.

“Both cultivars, marijuana and hemp, are the same plant - Cannabis sativa.” Tenn. Bureau

of Investigation, Hemp & Marijuana, https://www.tn.gov/tbi/crime-issues/crime-

issues/hemp---marijuana.html (last visited August 21, 2024). “Cannabis sativa has been

cultivated for both its psychoactive properties (marijuana) and as a source of fiber (hemp).”

Id. However, hemp and marijuana differ based on the amount of THC they contain. See

Tenn Code. Ann. § 43-27-101(3) (providing the legal definition of hemp). “THC, or

tetrahydrocannabinol, is the principal psychoactive chemical of the cannabis plant.” Tenn.

Bureau of Investigation, Hemp & Marijuana, https://www.tn.gov/tbi/crime-issues/crime-

issues/hemp---marijuana.html (click “What is THC?” under “Frequently Asked

Questions”) (last visited August 21, 2024).

Before considering the arguments relating to probable cause from both parties and

the amici curiae, Tennessee Growers Association and Tennessee Association of Criminal

Defense Lawyers, it is necessary briefly to note the changes in federal and state law

regarding hemp and marijuana. In 2018, Congress passed the Agricultural Improvement

-4-

Act (“Farm Bill”). The Farm Bill modified the definition of “marijuana” in the Controlled

Substances Act by providing that it does not include “hemp.” Agricultural Improvement

Act of 2018, Pub. L. No. 115-334, § 12619, 132 Stat. 4490, 5018. The United States Code

defines hemp as “the plant Cannabis sativa L. and any part of that plant, including the seeds

. . . and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers

. . . with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry

weight basis.” 7 U.S.C. § 1639o(1).

In 2019, Tennessee followed the lead of the federal government by also removing

hemp from the definition of marijuana in the Tennessee Code. Act effective April 4, 2019,

ch. 87 § 1, 2019 Tenn. Pub. Acts,

https://publications.tnsosfiles.com/acts/111/pub/pc0087.pdf (codified at Tenn. Code Ann.

§ 39-17-402(16)(C)). Tennessee Code Annotated section 39-17-402(16)(C) now provides

that “‘[m]arijuana’ . . . does not include hemp, as defined in [section] 43-27-101.” Hemp

is defined in section 43-27-101(3) as it is defined in the federal code.4 Thus, in Tennessee,

marijuana is defined as Cannabis sativa containing greater than 0.3% THC, while hemp is

defined as Cannabis sativa containing not more than 0.3% THC. Tenn. Code. Ann. § 43-

27-101(3). Due to the removal of hemp from the definition of marijuana, the possession

of hemp is legal in Tennessee. See Tenn. Code Ann. §§ 39-17-402(16)(C), -415(c), -417.

III. STANDARD OF REVIEW

The standard of review involving a motion to suppress is well-settled. “[A] trial

court’s findings of fact in a suppression hearing will be upheld unless the evidence

preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Questions

about the “credibility of the witnesses, the weight and value of the evidence, and resolution

of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” Id.

However, “the application of the law to the facts is a question of law that appellate courts

review de novo with no presumption of correctness.” State v. Bell, 429 S.W.3d 524, 529

(Tenn. 2014) (citing State v. Moats, 403 S.W.3d 170, 177 (Tenn. 2013) (overruled in part

on other grounds); State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012)).

In this case, the trial court noted that the parties stipulated to the underlying facts of

the search and seizure, as well as that the “canine would be otherwise qualified.”

4

Similar to the United States Code, Tennessee Code Annotated section 43-27-101(3) states:

“Hemp” means the plant cannabis sativa L. and any part of that plant, including the seeds

thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of

isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration

of not more than three-tenths of one percent (0.3%) on a dry weight basis[.]

-5-

Regarding the canine’s qualifications, Defendant stated in his motion to suppress that “the

dog is trained to detect the odor of marijuana, cocaine, methamphetamine and heroin.” We

accept the parties’ stipulations regarding the factual background and qualifications of the

canine as relied upon by the trial court because the evidence does not preponderate

otherwise. See Odom, 928 S.W.2d at 23.

The trial court only highlighted one unresolved finding of fact, a fact which it found

to be determinative for its ruling: “whether the canine c[ould] distinguish between legal

hemp and illegal marijuana.” The trial court ruled that because the State, as the party with

the burden of proof, “offered no proof regarding whether the drug detection canine c[ould]

distinguish between hemp and marijuana,” the canine’s reliability was not established.

Because the evidence does not preponderate otherwise, we likewise accept the trial court’s

factual finding that the canine in this case could not distinguish between illegal marijuana

and legal hemp. See id. However, we are not bound by the trial court’s legal conclusion

that based on the canine’s inability to distinguish between hemp and marijuana, the canine

was unreliable for purposes of establishing probable cause. Whether law enforcement

possessed probable cause to search a vehicle pursuant to the automobile exception “is a

mixed question of law and fact that we review de novo.” Bell, 429 S.W.3d at 529.

IV. ANALYSIS

Both the United States Constitution and the Tennessee Constitution protect against

unreasonable searches and seizures. The Fourth Amendment to the United States

Constitution provides: “The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause . . . .” Article I, section 7 of the Tennessee

Constitution similarly guarantees “[t]hat the people shall be secure in their persons, houses,

papers and possessions, from unreasonable searches and seizures.” Under both

constitutions, “a search without a warrant is presumptively unreasonable, and any evidence

obtained pursuant to such a search is subject to suppression unless the state demonstrates

that the search was conducted under one of the narrowly defined exceptions to the warrant

requirement.” State v. Cox, 171 S.W.3d 174, 179 (Tenn. 2005) (citing State v. Garcia, 123

S.W.3d 335, 343 (Tenn. 2003)).

Relevant to the facts of this case, “[t]he ‘automobile exception’ to the warrant

requirement permits an officer to search an automobile if the officer has probable cause to

believe that the automobile contains contraband.”5 State v. Saine, 297 S.W.3d 199, 207

5

Defendant suggests in his brief that Article I, section 7 of the Tennessee Constitution provides

greater protection than the Fourth Amendment to the United States Constitution. However, Defendant did

not develop this argument as it relates to the legal issue of this case aside from stating that “there are clear

linguistic differences between the two provision[s] and state protections can exceed federal.” Having failed

-6-

(Tenn. 2009) (citing Carroll v. United States, 267 U.S. 132, 149 (1925)). The United States

Supreme Court has provided two primary justifications for the automobile exception: (1)

vehicles are “readily mobile by the turn of an ignition key” and (2) there is a reduced

expectation of privacy involving automobiles. California v. Carney, 471 U.S. 386, 393

(1985). Therefore, “[i]f the officer has probable cause to believe that the automobile

contains contraband, the officer may either seize the automobile and then obtain a warrant

or search the automobile immediately.” Saine, 297 S.W.3d at 207 (citing Chambers v.

Maroney, 399 U.S. 42, 52 (1970)).

Defendant argues that “because a canine sniff cannot differentiate between the odor

of illegal marijuana and legal levels of cannabis or CBD,” probable cause to search a

vehicle cannot be “based solely on the dog’s sniff . . . because any alert the dog makes is

unreliable since the dog can alert on a legal substance.”6 Based on this argument,

Defendant urges this Court to overturn State v. England, 19 S.W.3d 762 (Tenn. 2000), a

prior case involving law enforcement utilizing a canine sweep as part of a probable cause

determination.

The State, on the other hand, argues that a “positive alert from a certified drug-

detection dog still establishes probable cause to search a car, despite the legal status of

hemp.” In support of this argument, the State cites to England as a “longstanding source”

for probable cause involving a positive alert from a trained and reliable drug-sniffing

canine. Alternatively, the State argues that “even if this Court were to conclude that a

dog’s alert alone no longer provides probable cause,” the alert establishes probable cause

when viewed as part of a totality-of-the-circumstances inquiry.

To begin our analysis, we first address the holding of State v. England. In England,

a deputy sheriff initiated a traffic stop after witnessing the defendant driving without a light

to illuminate his rear license plate, in violation of Tenn. Code Ann. § 55-9-404 (1998).

England, 19 S.W.3d at 764. As the deputy awaited the report from dispatch on any

outstanding warrants and the status of the defendant’s license, the defendant exited his

to develop this argument, Defendant has waived it. We, therefore, proceed on the assumption that the United

States and Tennessee constitutions are co-extensive for purposes of resolving this case.

6

In addition to the question of whether law enforcement possessed probable cause to search the

vehicle, Defendant’s brief also raises other issues. The most notable additional issue that Defendant raises

is whether a dog sniff now constitutes a search in light of the legalization of hemp. See generally State v.

Major, No. 2021-01469-CCA-R3-CD, 2023 WL 7166314, at *6 (Tenn. Ct. App. Oct. 31, 2023) (McMullen,

P.J., concurring) (“I write separately, however, to highlight how the legalization of hemp has fractured the

foundation underlying the rule that a drug detection dog sniff is not a search subject to Fourth Amendment

protections.”). However, that question was not raised in the courts below and is not properly before us.

Defendant’s brief also appears to suggest that the canine’s qualities and training were insufficient and that

law enforcement did not have a sufficient basis to make the initial traffic stop. We agree with the State that

those issues were not raised in the courts below and are consequently waived. See Tenn. R. App. P. 36(a).

-7-

vehicle. Id. The defendant expressed his concern to the deputy that perhaps the wiring

connecting the light was loose. Id. at 764–65. The deputy then became suspicious based

on their conversation. Id. at 765. In particular, during their discussion about the

defendant’s prior arrest for marijuana possession, the defendant became visibly nervous

when the deputy inquired if he had any marijuana in his vehicle. Id. The deputy asked for

consent to search the vehicle, which the defendant refused. Id. Around that time, another

deputy arrived on the scene and retrieved his canine from the patrol car to conduct a sweep

of the exterior of the defendant’s vehicle. Id. During the canine sweep, the dog alerted to

the vehicle. Id. Deputies discovered marijuana, weighing scales, empty plastic bags, and

a marijuana pipe. Id. The defendant filed a motion to suppress arguing that the sweep

constituted a search and that the deputy lacked probable cause to search. Id. This Court

ultimately held that the canine sweep did not constitute a search and that police possessed

probable cause to search the defendant’s vehicle.7 Id. at 767, 769.

Based on the briefs of the parties and the responses at oral argument, there appears

to be confusion as to whether England established a per se rule of probable cause based on

a positive alert from a trained and reliable drug-sniffing canine.8 We now clarify that

England did not establish a per se rule of probable cause based on a positive alert from a

drug-sniffing dog. Rather, the case based its overall probable cause determination on the

totality of circumstances: “Coupled with the deputy’s testimony with regard to the

defendant’s demeanor, the canine’s positive alert provided probable cause.” Id. at 769

(emphasis added). Although the England Court did not expressly state that it engaged in a

totality-of-the-circumstances analysis, the Court did explicitly reject adopting a per se rule

“of probable cause based on a positive alert by a trained narcotics detection dog.” Id. at

768. The Court explained that “the finding of probable cause should turn on the reliability

of the canine.” Id.

To the extent any prior opinions of the Court of Criminal Appeals or this Court

imply or provide a per se rule of probable cause based on a positive alert in this context,

they are overruled. Both this Court and the United States Supreme Court have held that

determining whether probable cause exists is a totality-of-the-circumstances inquiry. For

example, in Illinois v. Gates, the United States Supreme Court stated that the “totality-of-

7

As noted above, the issue of whether a dog sniff is a search is not before us today. Therefore, our

discussion of England only extends to the second issue in that case: whether police possessed probable

cause based, in part, on the positive alert of a drug-sniffing canine. See England, 19 S.W.3d at 768–69.

8

At oral argument the State noted that “England did not adopt a per se rule about a dog alert.”

However, in its brief, the State argues: “A positive alert from a certified drug-detection dog still establishes

probable cause to search a car, despite the legal status of hemp. And regardless, the totality of the

circumstances established probable cause to search the defendant’s car and backpack.” This appears to be

an argument in favor of a per se rule by including the alternative argument involving the totality of the

circumstances.

-8-

the-circumstances approach is far more consistent with our prior treatment of probable

cause than is any rigid demand that specific ‘tests’ be satisfied.” 462 U.S. 213, 230–31

(1983) (footnote omitted). Consequently, the Court overruled the strict Aguilar/Spinelli

requirements for determining whether an informant’s tip establishes probable cause and

instead adopted a totality-of-the-circumstances approach. Id. at 238. Likewise, in 2017,

this Court abandoned the Aguilar/Spinelli test under the Tennessee Constitution in favor of

a totality-of-the-circumstances approach. State v. Tuttle, 515 S.W.3d 282, 305 (Tenn.

2017). In the context of canine sniffs, the United States Supreme Court has also stated that

“[i]n evaluating whether the State has met th[e] practical and common-sensical standard

[of probable cause], we have consistently looked to the totality of the circumstances.”

Florida v. Harris, 568 U.S. 237, 244 (2013) (citing Maryland v. Pringle, 540 U.S. 366,

371 (2003); Gates, 462 U.S. at 232; Brinegar v. United States, 338 U.S. 160, 176 (1949)).

As with the probable cause inquiries in those cases, we proceed in this case by analyzing

the totality of the circumstances to determine if law enforcement possessed probable cause

to conduct a search.

Probable cause involves non-technical probabilities relating to “factual and practical

considerations of everyday life on which reasonable and prudent men, not legal

technicians, act.” Brinegar, 338 U.S. at 175. “A police officer has probable cause to

conduct a search when the facts available to him would warrant a person of reasonable

caution in the belief that contraband or evidence of a crime is present.” E.g., Harris, 568

U.S. 237 at 243 (cleaned up) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality

opinion)). Naturally, “[d]eterminations of probable cause are extremely fact-dependent.”

Bell, 429 S.W.3d at 534. “Each case must stand on its own facts.” State v. Reynolds, 504

S.W.3d 283, 301 (Tenn. 2016) (quoting Dittberner v. State, 291 S.W. 839, 840 (Tenn.

1927)). As the United States Supreme Court concisely explained in Florida v. Harris, a

case involving drug-sniffing canines:

The question—similar to every inquiry into probable cause—is whether all

the facts surrounding a dog’s alert, viewed through the lens of common

sense, would make a reasonably prudent person think that a search would

reveal contraband or evidence of a crime. A sniff is up to snuff when it meets

that test.

568 U.S. at 248.

After consideration, we hold that a positive alert from a drug-sniffing canine may

continue to be considered in a totality-of-the-circumstances analysis and may continue to

contribute to a probable cause determination. This is because probable cause does not

require “absolute certainty.” Reynolds, 504 S.W.3d at 300. While it is true that the

legalization of hemp “may add a level of ambiguity to a [dog sniff’s] probative value in a

probable cause determination, . . . it does not destroy the fact’s usefulness outright and

-9-

require it to be disregarded.” Colorado v. Zuniga, 372 P.3d 1052, 1058 (Colo. 2016),

abrogated on other grounds by Colorado v. McKnight, 446 P.3d 397, 400 (Colo. 2019).9

A positive alert from a canine trained to detect cannabis, methamphetamine, cocaine, and

heroin “still give[s] rise to a high probability that a controlled substance is in the car.”

United States v. Deluca, No. 20-8075, 2022 WL 3451394, at *5 (10th Cir. Aug. 18, 2022).

Even prior to the legalization of hemp, probable cause based on a canine sniff did

not demand absolute certainty of contraband being found. See Harris, 568 U.S. at 245. In

Harris, the United States Supreme Court acknowledged that drug-sniffing canines have the

potential to alert on a vehicle in circumstances where officers will be unable to locate

contraband and will only discover legal possessions. Id. (“[I]f the dog alerts to a car in

which the officer finds no narcotics, the dog may not have made a mistake at all. The dog

may have detected substances that were too well hidden or present in quantities too small

for the officer to locate.”). In Harris, the United States Supreme Court stated that “a well-

trained dog’s alert establishes a fair probability—all that is required for probable cause—

that either drugs or evidence of a drug crime . . . will be found,” even when a dog alerts to

mere residual odors with no substances present at all. Id. at 246 n.2. Despite these

possibilities, the ultimate question is still “whether all the facts surrounding a dog’s alert,

viewed through the lens of common sense, would make a reasonably prudent person think

that a search would reveal contraband or evidence of a crime.” Id. at 248.

Extending the rationale from Harris to the facts of this case, the possibility of a dog

alerting to hemp rather than an illegal substance “merely affects a fact’s weight and

persuasiveness [in the probable cause analysis], not its inclusion in the analysis

[altogether].” Zuniga, 372 P.3d at 1058. This reasoning also likely explains some of the

confusion surrounding England and related cases. Prior to the legalization of hemp, a

positive alert from a drug-sniffing canine trained to detect narcotics suggested the presence

of only illegal substances. See United States v. Place, 462 U.S. 696, 707 (1983) (“[T]he

sniff discloses only the presence or absence of narcotics, a contraband item.”).

Consequently, the probative value of a dog sniff to indicate the presence of an illegal

substance was particularly strong such that it would provide probable cause in the bulk of

cases. Although the legalization of hemp has added a degree of ambiguity to a dog’s

positive alert, a positive alert from a reliable canine trained to detect multiple illegal

substances is still probative of whether or not illegal substances are located inside of an

automobile and should therefore still be considered in a totality-of-the-circumstances

analysis.

9

The Colorado Supreme Court later reclassified dog sniffs as searches under the Colorado

Constitution in Colorado v. McKnight, 446 P.3d at 400. Our citation to Colorado v. Zuniga, 372 P.3d at

1058 does not provide any implicit stance on the distinct legal question of whether a dog sniff is a search.

- 10 -

Having determined that a canine’s alert may continue to be a factor to consider under

the totality of the circumstances, we now determine whether Officer Trescott possessed

probable cause to search the vehicle based on facts of this case. Upon approaching the

vehicle, Officer Trescott smelled “a strong odor of a fragrance coming from the vehicle.”

The record does not indicate what the odor resembled to Officer Trescott, but Mr. Chavez

informed Officer Trescott that the smell stemmed from three fragrance pine trees hanging

from the mirror. Officer Trescott also observed a backpack in between Defendant’s feet.

When asked about the backpack, both Mr. Chavez and Defendant stated that the bag did

not belong to them. During the interaction, Officer Trescott ordered Mr. Chavez and

Defendant to exit the vehicle.10 After they exited the vehicle, Officer Trescott deployed a

drug-sniffing canine to conduct an open-air sniff of the vehicle. The canine was trained to

detect cannabis, heroin, methamphetamine, and cocaine. The dog indicated on the vehicle.

After the alert, Officer Trescott asked each occupant if there was anything in the vehicle.

Both occupants replied no. When Officer Trescott informed Mr. Chavez that he could be

charged with anything in the vehicle, Mr. Chavez immediately looked at Defendant and

prodded him to talk. Defendant then informed Officer Trescott that he had picked up the

backpack from his brother but did not know what was inside. Officer Trescott searched

the backpack, discovering the contraband and evidence of crimes that Defendant seeks to

suppress.

Based on the totality of the circumstances, we hold that all of “the facts available to

[Officer Trescott] would warrant a person of reasonable caution in the belief that

contraband or evidence of a crime [was] present.” Harris, 568 U.S. at 243 (cleaned up)

(quoting Brown, 460 U.S. at 742). In addition to the positive indication from the drug-

sniffing canine capable of detecting multiple illegal substances, Mr. Chavez and Defendant

both provided suspicious answers to Officer Trescott’s questions regarding the bag resting

between Defendant’s feet. “Response[s] to questioning by police officers [are] a common

source of probable cause determinations.” State v. Shrum, 643 S.W.2d 891, 894 (Tenn.

1982), abrogated on other grounds by Tuttle, 515 S.W.3d at 305; see also Columbia v.

Wesby, 583 U.S. 48, 61 (2018) (“[P]robable cause does not require the officers to rule out

a suspect’s innocent explanation for suspicious facts.”). Each of the only occupants of the

vehicle denied owning the backpack. Because it is very unlikely that neither occupant

owned the backpack, these responses strongly support the probable cause determination.

Moreover, not only did Mr. Chavez prod Defendant to talk to law enforcement about the

contents of the backpack, he prodded him to talk after being informed that Mr. Chavez

himself could face consequences for anything illegal found within the vehicle.

Furthermore, Mr. Chavez’s prodding Defendant to talk to police indicated that Mr. Chavez

10

At oral argument, Defendant seemed to base part of his argument on the fact that Officer Trescott

required the occupants to exit the vehicle. However, it is well-established that police may order occupants

to exit the vehicle during a valid traffic stop even without a suspicion of criminal activity in the interest of

officer safety. See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977); Maryland v. Wilson, 519 U.S. 408,

410 (1997); see also State v. Berrios, 235 S.W.3d 99, 106 (Tenn. 2007).

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was aware of something inside the vehicle. Lastly, while Officer Trescott smelling an

unspecified “strong odor” would not be sufficient to establish probable cause alone, it is

another notable fact when considering the totality of the circumstances.

In summary, sufficient facts existed for Officer Trescott to conclude that contraband

or evidence of a crime was present inside the vehicle. We hold that Officer Trescott

possessed probable cause to satisfy the automobile exception to the warrant requirement.

Therefore, like the Court of Criminal Appeals, we conclude the trial court erred by granting

Defendant’s motion to suppress.

V. CONCLUSION

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 pursuant to the automobile exception of the warrant requirement. Accordingly, we

affirm the judgment of the Court of Criminal Appeals reinstating the indictments against

the defendant and remanding for further proceedings. It appearing that Defendant, Andre

JuJuan Lee Green, is indigent, costs of this appeal are taxed to the State of Tennessee.

___________________________

ROGER A. PAGE, JUSTICE

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