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Even though legal forms of cannabis can smell the same as illegal marijuana, that doesn’t mean officers can’t use the odor to establish reasonable suspicion of criminal activity, the Court of Appeals of Indiana has affirmed.
The Court of Appeals reached that conclusion Friday in Cody Moore v. State of Indiana, 22A-CR-1979.
In that case, an Indianapolis police officer stopped a car driven by Cody Moore after the officer ran a license plate check and saw the plate was expired and registered to a different vehicle.
The officer smelled marijuana in the car, and a search uncovered about 3½ pounds of marijuana, along with $11,500 in cash.
Moore was charged with dealing in marijuana, possession of marijuana and resisting law enforcement. He moved to suppress the items seized from the car, but the Marion Superior Court denied the motion. The court also denied his motion to reconsider.
On interlocutory appeal, Moore claimed a violation of the Fourth Amendment of the U.S. Constitution and Article 1, Section 11 of the Indiana Constitution.
Moore conceded that operating the vehicle with an expired license plate justified the traffic stop, but he argued the circumstances of the stop didn’t establish reasonable suspicion that criminal activity was occurring to justify further detention.
At the suppression hearing, the officer testified he “detected the strong odor of marijuana emanating from inside the car” and asked Moore how much marijuana was in the car. Moore denied the presence or use of marijuana, which the officer called “an immediate red flag.”
“These facts are sufficient to establish reasonable suspicion that criminal activity was occurring,” the Court of Appeals ruled.
Moore then argued there wasn’t probable cause to search the car, asserting that there is no distinction between the odor of legal and illegal cannabis-derived substances and that the odor of marijuana is no longer a sufficient basis for a warrantless search of a vehicle.
The opinion notes the Indiana General Assembly amended state law to recognize the legality of some forms of cannabis containing low levels of THC. It also notes some federal courts have rejected that argument in cases including United States v. Vaughn, 429 F. Supp. 3d 499 (E.D. Tenn. 2019).
“Although it was equally possible that the strong odor emanating from the vehicle and detected by Officer (Ryan) Dienhart was hemp as it was marijuana, these circumstances created a fair probability — that is, ‘a substantial chance’ — that the vehicle contained contraband,” the Court of Appeals ruled, citing the case of Eaton v. State, 889 N.E.2d 297 (Ind. 2008).
The COA then turned to an Indiana constitutional analysis.
In disagreeing with Moore’s argument that it can no longer be said that marijuana has a distinct smell to indicate criminal activity, the Court of Appeals said marijuana isn’t the only substance whose legality can’t be detected by human senses alone.
“For instance, innocuous substances such as talcum powder, flour, and sugar have a white powdery appearance similar to cocaine,” the opinion states. “But that does not mean that an untested white powder can never indicate criminal activity.”
The opinion also says it remains true that some types of marijuana possession remain illegal in Indiana.
“It follows then that the odor of marijuana reasonably may indicate criminal activity,” the opinion states. “… Therefore, in the consideration of the constitutionality of a search based on the odor of marijuana, as the law stands now it is of no moment that legal hemp smells similar to illegal marijuana because law enforcement’s conduct must be reasonable under the circumstances and such reasonableness does not require conclusive proof that a defendant committed a crime.”
Senior Judge Randall Shepard wrote the opinion. Judges Rudolph Pyle and Leanna Weissmann concurred.
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