State of Tennessee v. Torrian Seantel Bishop

04/11/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 5, 2024

STATE OF TENNESSEE v. TORRIAN SEANTEL BISHOP

Appeal from the Circuit Court for Obion County

No. CC-22-CR-22 Jeffrey Parham, Judge

No. W2023-00713-CCA-R3-CD

The Defendant, Torrian Seantel Bishop, pleaded guilty in the Obion County Circuit Court

to the unlawful possession of a weapon, a Class B felony, and theft of property, a Class E

felony. See T.C.A. §§ 39-17-1307(b)(1) (Supp. 2023) (unlawful possession of a weapon),

39-14-103 (2018) (theft of property). The trial court sentenced the Defendant to an

effective twelve-year sentence in confinement. On appeal, the Defendant presents a

certified question of law regarding the legality of the search of his car. We affirm the

judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR. and JILL BARTEE AYERS, JJ., joined.

Bill Randolph, District Public Defender; Jessica F. Butler (on appeal), Assistant Public

Defender-Appellate Division; and Damon E. Campbell (at suppression and guilty plea

hearings), Assistant Public Defender, for the appellant, Torrian Seantel Bishop.

Jonathan Skrmetti, Attorney General and Reporter; Katherine C. Redding and Richard D.

Douglas, Sr., Assistant Attorneys General; Colin Johnson, District Attorney General;

Melinda Meador and Jerald Campbell, Assistant District Attorneys General, for the

appellee, State of Tennessee.

OPINION

This case relates to the November 5, 2021 traffic stop of the Defendant’s car as a

result of the Defendant’s driving with a suspended driver’s license. An officer at the scene

indicated he detected the odor of marijuana in the car. Finding probable cause to search

the vehicle as a result of the odor, the officers searched the car, which revealed a stolen

handgun under the driver’s seat. The Defendant filed a motion to suppress the handgun’s

seizure, contending that the officers lacked probable cause to search his vehicle. The

Defendant did not challenge the vehicle stop. The trial court denied the motion to suppress.

On May 1, 2023, the Defendant entered a best-interest guilty plea to unlawful

possession of a weapon and theft of property. See North Carolina v. Alford, 400 U.S. 25

(1970). The Defendant reserved a certified question of law to which the State and the trial

court consented and certified as dispositive of the case. See Tenn. R. Crim. P. 37(b)(2)(A).

The Defendant’s certified question is as follows

Whether under the Fourth Amendment to the U.S. Constitution and Article

I, section 7 of the Tennessee Constitution, law enforcement possessed

probable cause to search the Defendant’s automobile without a warrant based

exclusively on the allegedly plain smell of marijuana, when the officer

claiming to have probable cause to search the automobile admittedly could

not distinguish the smell of marijuana from the smell of hemp, the possession

of hemp was legalized on April 4, 2019 by the passage of Senate Bill No.

357 as Public Chapter 87 in the 2019 Session of the 111th Tennessee General

Assembly, and the traffic stop and automobile search in this case occurred

on November 5, 2021?

At the October 19, 2022 suppression hearing, Union City Police Officer Kyle Ross

testified that he conducted a traffic stop of the Defendant’s car after confirming with the

police dispatcher that the Defendant was driving with a suspended driver’s license. Officer

Ross stated that he advised the Defendant of the reason for the stop, that Union City Police

Sergeant Josh Rogers arrived on the scene, and that Sergeant Rogers indicated he smelled

the odor of marijuana. Officer Ross stated that since having COVID, he had lost his sense

of smell. Officer Ross said that when he asked the Defendant about the last time marijuana

had been in the car, the Defendant answered, “It had been a minute.” Officer Ross said

that he removed the Defendant from the car, conducted a search of the car, found a handgun

underneath the driver’s seat, and determined that the handgun had been stolen. Officer

Ross said that he was not aware that the Defendant was on probation or a felon at the time

of the traffic stop.

On cross-examination, Officer Ross testified that he had probable cause to search

the car solely as a result of the smell of marijuana and that it was not a consensual or

probation search. Officer Ross said that the traffic stop occurred early in the morning and

that he wore a body camera. Officer Ross stated that the Defendant got out of the car when

asked and that a pat down of the Defendant did not reveal any marijuana. Officer Ross

told the Defendant that the Defendant could leave if the search of the car did not reveal

anything of concern. Officer Ross acknowledged that he did not find any marijuana in the

car. Officer Ross stated that after the Defendant’s arrest, Sergeant Rogers transported the

Defendant to the police station and that the Defendant’s vehicle was towed from the scene.

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A copy of Officer Ross’s body camera video recording was played at the hearing

and was received as an exhibit. The recording is consistent with the testimony. The

Defendant’s probation order was received as an exhibit, according to which the Defendant

agreed to a warrantless search of his car by a law enforcement officer at any time.

The trial court, noting a lack of guidance from the appellate courts on whether the

smell of marijuana provided probable cause for a search after the legalization of hemp,

granted the Defendant’s motion and suppressed the handgun’s seizure. The court said that

the officers would have been entitled to search pursuant to the probation order if they had

known that the Defendant was on probation.

On November 18, 2022, the State filed a motion for rehearing citing State v. Stephen

Paul Hampton and Margaret Mary Hampton, in which this court stated that “[a]ccording

to published case law by this court and our supreme court, the smell of marijuana alone

can establish probable cause for the warrantless search of an automobile.” No. W2021-

00938-CCA-R3-CD, 2022 WL 16919950, at *6 (Tenn. Crim. App. Nov. 14, 2022). The

trial court granted the State’s motion and held a hearing on January 4, 2023.

At the January 2023 hearing, Sergeant Rogers testified that he assisted Officer Ross

at the traffic stop and was aware Officer Ross had lost his sense of smell as a result of

COVID. Sergeant Rogers said that Officer Ross touched his nose, indicating that he

wanted Sergeant Rogers to see if he detected the odor of marijuana. Sergeant Rogers said

he had “no question in his mind” that he smelled marijuana.

On cross-examination, Sergeant Rogers acknowledged that he could not

differentiate between the odor of hemp and marijuana.

The trial court reversed its earlier ruling and denied the motion to suppress, finding

that probable cause existed for the search. The court noted that “[u]ntil the supreme court

or the legislature determines otherwise, the smell of marijuana continues to establish

probable cause for the warrantless search of an automobile.” The court opined that the

officers’ ability to arrest the Defendant for the driver’s license violation might have

provided probable cause to search the Defendant’s car.

Tennessee Criminal Procedure Rule 37(b)(2)(A) provides that an appeal can be

taken from a plea of guilty if the Defendant enters into a plea agreement and explicitly

reserves, with the consent of the State and the trial court, a certified question of law that is

dispositive of the case. Tenn. R. Crim. P. 37(b)(2)(A)(i)-(iv); see State v. Armstrong, 126

S.W.3d 908 (Tenn. 2003). “An issue is dispositive when this court must either affirm the

judgment or reverse and dismiss. An issue is never dispositive when we might reverse and

remand[.]” State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984). Furthermore,

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the fact that the defendant, the State, and the trial judge have agreed the issue is dispositive

does not bind this court. State v. Preston, 759 S.W.2d 647, 651 (Tenn. 1988). “[T]he

appellate courts must . . . determine if the record on appeal demonstrates how that question

is dispositive of the case . . . . If the appellate court does not agree that the certified question

is dispositive, appellate review should be denied.” Id. (citing State v. Jennette, 706 S.W.2d

614, 615 (Tenn. 1986)); see State v. Dailey, 235 S.W.3d 131, 134-35 (Tenn. 2007). The

certified question must also clearly identify “the scope and limits of the legal issue

reserved.” Tenn. R. Crim. P. 37(b)(2)(A)(ii).

We agree with the parties that the certified question is dispositive of the case because

the officers searched the Defendant’s car as a result of Sergeant Rogers’s smelling the odor

of marijuana, which the officers believed provided them with probable cause to search the

car. The question identifies the scope and limits of the issue reserved. We, therefore,

consider the question on its merits.

The Defendant contends that the smell of marijuana does not provide probable cause

to conduct a warrantless search because the smell of marijuana is indistinguishable from

that of hemp, the latter of which was legalized in 2019.1 The State responds that case law

subsequent to the legalization of hemp provides that the smell of marijuana continues to

establish probable cause to conduct a warrantless search of a vehicle. We agree with the

State.

A trial court’s findings of fact on a motion to suppress are conclusive on appeal

unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn.

1996); State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). 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.” Odom,

928 S.W.2d at 23. The prevailing party is entitled to the “strongest legitimate view of the

evidence and all reasonable and legitimate inferences that may be drawn from that

evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998); see State v. Hicks, 55 S.W.3d

515, 521 (Tenn. 2001). The trial court’s application of the law to its factual findings is a

question of law and is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629

(Tenn. 1997).

1

Hemp is defined as Cannabis sativa containing not more than 0.3% Tetrahydrocannabinol (THC).

Marijuana is defined as Cannabis sativa containing greater than 0.3% THC. See T.C.A. §§ 39-17-402

(2019) (subsequently amended); 43-27-101 (Supp. 2020) (subsequently amended).

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The Fourth Amendment to the United States Constitution and article I, section 7 of

the Tennessee Constitution protect individuals from unreasonable searches and seizures.

See U.S. Const. amend. IV; Tenn. Const. art. 1, § 7. Warrantless seizures are “presumed

unreasonable, and evidence discovered as a result thereof is subject to suppression unless

the State demonstrates that the . . . seizure was conducted pursuant to one of the narrowly

defined exceptions to the warrant requirement.” State v. Yeargan, 958 S.W.2d 626, 629

(Tenn. 1997); see Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v.

Binette, 33 S.W.3d 215, 218 (Tenn. 2000).

For purposes of the present case, the parties do not dispute that a warrantless search

and seizure occurred or that Sergeant Rogers smelled what he determined to be the odor of

marijuana in the car. Within the context of warrantless searches and seizures, a car may

be searched without a warrant if probable cause exists for the search. Chambers v.

Maroney, 399 U.S. 42, 48 (1970); State v. Leveye, 796 S.W.2d 948, 952 (Tenn. 1990).

“[P]robable cause is a flexible, common-sense standard.” Texas v. Brown, 460 U.S. 730,

742 (1983) (plurality). It requires that the available facts provide a person “‘of reasonable

caution in the belief’” that an item that is evidence of a crime will be found. Id. (quoting

Carroll v. United States, 267 U.S. 132, 162 (1925)); State v. Banner, 685 S.W.2d 298, 301

(Tenn. Crim. App. 1984).

The current state of the law in Tennessee, as recently articulated by this court, is

that “the binding precedent from the Tennessee Supreme Court allows the smell of

marijuana to provide probable cause for a search.” State v. Andre JuJuan Lee Green, No.

M2022-00899-CCA-R3-CD, 2023 WL 3944057, at *3 (Tenn. Crim. App. June 12, 2023)

(citing State v. Hughes, 544 S.W.2d 99, 101 (Tenn. 1976)), perm. app. granted (Tenn. Nov.

20, 2023); see Hicks v. State, 534 S.W.2d 872, 874 (Tenn. Crim App. 1975); State v.

Frederick A. Crosby, No. W2013-02610-CCA-R3-CD, 2014 WL 4415924, at *8 (Tenn.

Crim. App. Sept. 9, 2014). This court has also recognized that “the inability of a trained

drug detection canine to distinguish between the odor of marijuana and the odor of hemp

does not, in and of itself, render the canine’s reaction to narcotics unreliable for purposes

of establishing probable cause to support a search.” State v. Mark David Bond, No. M2022-

00469-CCA-R3-CD, 2023 WL 5559259, at *4 (Tenn. Crim. App. Aug. 29, 2023); see

Andrew JuJuan Lee Green, 2023 WL 3944057, at *3 (noting the legal analysis is the same

whether the smell of marijuana was detected by an officer or a drug canine). This issue is

currently pending in the Tennessee Supreme Court in Andrew JuJuan Lee Green, but “until

our supreme court or our legislature determines otherwise, the smell of marijuana continues

to establish probable cause for the warrantless search of an automobile.” State v. Stephen

Paul Hampton and Margaret Mary Hampton, No. W2021-00938-CCA-R3-CD, 2022 WL

16919950, at *6 (Tenn. Crim. App. Nov. 14, 2022).

The record reflects that Sergeant Rogers smelled the odor of marijuana in the

Defendant’s car and that the Defendant said marijuana had been in the car. Despite

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Sergeant Rogers’s admitted inability to distinguish between the smell of hemp and

marijuana, the record demonstrates a “fair probability, given the totality of the

circumstances, that contraband or evidence [would] be found” in the Defendant’s car, thus,

meeting the standard for establishing probable cause. See United States v. Vaughn, 429 F.

Supp. 3d 499, 510 (E.D. Tenn. 2019) (citations omitted); see also Illinois v. Gates, 462

U.S. 213, 232 (1983) (“probable cause is a fluid concept—turning on the assessment of

probabilities in particular factual contexts”). The handgun was discovered as a result of a

lawful search. The trial court did not err in its determination.

In consideration of the foregoing and the record as a whole, the judgments of the

trial court are affirmed.

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ROBERT H. MONTGOMERY, JR., JUDGE

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