# State of Tennessee v. Andre JuJuan Lee Green

> Tennessee Supreme Court · August 27, 2024

URL: https://www.frixlaw.com/law-library/cases/10546479

## Case

- **Court:** Tennessee Supreme Court
- **Decided:** August 27, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Justice Roger A. Page
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10546479. Public record. Not legal advice.