DRIVER ARGUED THAT ODOR OF MARIJUANA DID NOT PROVIDE PC FOR SEARCH BECAUSE SMELL OF HEMP IS INDISTINGUISHABLE

On July 11, 2025, the Eleventh Circuit Court of Appeals decided United States v. Green[i], in which a driver disputed whether there was probable cause to search his vehicle for several reasons, one of which was that the odor of marijuana and hemp are indistinguishable, and hemp is legal where the search occurred.  The facts, taken directly from the case, are as follows:

On the evening of November 16, 2022, Officer Christopher Brown with the Homewood Police Department observed a vehicle without a functioning tag light. Officer Brown followed the car, ran the license plate number through his onboard computer, and learned that the car’s registered owner, Gregory Green, had an outstanding felony warrant. Officer Brown saw that the vehicle did not use a signal as it turned into a Motel 6 parking lot, so he activated his blue lights for a traffic stop.

Once the vehicle stopped, Officer Brown instructed the driver to roll down his window, but the driver opened his door instead, explaining that his window did not work. Officer Brown told the driver that his tag light was out, which was “not a big deal,” asked for his license and registration, and explained that he would likely just issue a verbal warning if the license checked out. The driver further denied having any firearms in the car. From the license, Officer Brown confirmed that the driver was Green, so he returned to his patrol car and waited for another officer to arrive before speaking further with Green. Officer John Boockholdt soon arrived as backup. Officer Brown informed him that Green’s “car reek[ed] of weed,” that Green had a warrant, and that Green had been “reaching a little bit” for something inside his car, potentially in an effort to hide something.

Officer Brown then went back to the driver’s side of Green’s car, where Green had already opened the door, and instructed Green to show them his hands and step out of his car. At the same time, Officer Boockholdt opened the front passenger door. While removing Green from the car, Officer Brown informed him of his active warrant and asked, “How much weed [wa]s in the car?” Green replied, “Weed?” Brown responded that he “smell[ed] it,” began handcuffing Green, and again asked, “How much weed is in the car?” When Green did not answer, Brown stated, “I’m gonna search it so, I mean, we’re kind of past that point ’cause your car reeks, alright.” Green remained silent when Officer Brown again inquired about the possibility of firearms in the car.

Brown then retrieved his police dog, Titan, and brought him to Green’s car to conduct “a free-air sniff” for the presence of marijuana. When Titan began his sniffs, the driver’s door and front-passenger’s door of the vehicle were still open from when the officers had removed Green from the vehicle moments earlier. Officer Boockholdt also opened the rear passenger-side door just prior to the dog sniffs.

Titan first approached the open driver’s door and put his front paws and head into the cabin (the “First Intrusion”). Titan and Brown then travelled counterclockwise around Green’s car, until Titan encountered the open rear passenger-side door, where he again put his front paws and head into the cabin (the “Second Intrusion”). Titan then walked to the front passenger-side area and put his head and front paws into the car (the “Third Intrusion”). Following an additional circle around the vehicle, Officer Brown interpreted a final alert Titan made as confirming the presence of marijuana in Green’s car. The officers then searched Green’s car and discovered under the front passenger’s seat a firearm that had previously been reported stolen. They also found in the back seat a backpack containing marijuana, ecstasy, and hydrocodone.[ii]

Green was ultimately indicted for possession of a firearm by a convicted felon under federal law.  He filed a motion to suppress the evidence discovered during his traffic stop, arguing that the officers violated the Fourth Amendment when the dog entered his car during the sniff, therefore, it was not a free-air sniff.   The government argued that probable cause to search the vehicle existed prior to the canine sniff because Officer Brown smelled the odor of marijuana at the beginning of the traffic stop.  The district court denied Green’s motion to suppress.  Green entered a conditional guilty plea preserving his right to appeal the denial of his motion to suppress.

Green filed an appeal with the Eleventh Circuit Court of Appeals and argued that Officer Brown lacked probable cause for the search.  First, he argued that Officer Brown’s testimony that he smelled marijuana when he approached the car is contradicted by the police report and body camera video.  Second, he argued that because the odor of hemp and marijuana is indistinguishable, and hemp is legal in Alabama (where the incident occurred), the odor alone is insufficient to establish probable cause.  Third, he argued that the canine’s alerts were not reliable.  Lastly, he argued that the canine’s intrusion into his car violated the Fourth Amendment.

The court of appeals began by outlining the legal principles relevant to Green’s case.  The court stated

[T]he automobile exception allows police to conduct a warrantless search of a car if (1) it is readily mobile and (2) there is probable cause to believe that it contains contraband or evidence of a crime. United States v. Lanzon, 639 F.3d 1293, 1299-300 (11th Cir. 2011). “Probable cause exists when there is a fair probability that contraband or evidence of a crime will be found in the vehicle under the totality of the circumstances.” Id. at 1300. . .

We have previously held that an officer’s credible testimony that he smelled marijuana establishes probable cause to search a vehicle. See United States v. Tobin, 923 F.2d 1506, 1512 (11th Cir. 1991)[iii]

Here, the district court held that Officer Brown’s testimony that he smelled the odor of marijuana when he first approached Green’s vehicle was credible.  Even though Officer Brown failed to document this in his police report, he is seen on his body camera telling Officer Boockholdt, his back-up officer, that the “car reeked of weed.”  Then when Officer Brown approached the car to have Green exit his vehicle, he asked Green how much “weed was in the car?”  He also told Green he “smelled it.”  This was all prior to the canine sniff.  As such, the court of appeals determined that the district court’s determination that Officer Brown smelled marijuana at the beginning of the traffic stop was not “clearly erroneous,” the standard required to overturn the court’s factual determination.  Therefore, Officer Brown had probable cause to search Green’s vehicle prior to the canine sniff.

Green argued that Officer Brown testified that if his canine, Titan, had not alerted on the car, he would not have searched Green’s car.  To this, the court of appeals stated

While police “do not have unfettered authority to detain a person [during a traffic stop] indefinitely,” Campbell, 26 F.4th at 881, there is no requirement that a warrantless search of a vehicle occur strictly contemporaneously with the establishment of probable cause, see Texas v. White, 423 U.S. 67, 68, 96 S. Ct. 304, 46 L. Ed. 2d 209 (1975). Because Officer Brown had no immediate obligation to search Green’s car, his diligent choice to have Titan first confirm the presence of marijuana did not undermine his previous probable-cause determination. See Campbell, 26 F.4th at 881.[iv]

In other words, officers are not required to search a vehicle immediately upon establishing probable cause that it contains evidence of a crime. Thus, Officer Brown’s use of Titan to confirm the odor of marijuana did not undermine the fact that Officer Brown independently smelled marijuana which provided him probable cause to search the vehicle.

This is the case even though Officer Brown testified that if Titan did not alert, he would not have searched Green’s vehicle.  In fact, even if Titan did not alert, Officer Brown still could have conducted the search, based upon his previous detection of the odor of marijuana.

Green also argued, for the first time, on appeal, that “the smell of marijuana alone cannot be an adequate basis to support probable cause” because “the smell of hemp, which is legal in Alabama, is indistinguishable from the smell of marijuana.”[v]  While this argument is waived because Green did not raise it before the district court, the court of appeals discussed it nonetheless.  The court stated

The probable cause standard “does not require officers to rule out . . . innocent explanations” for a defendant’s conduct. D.C. v. Wesby, 583 U.S. 48, 61, 138 S. Ct. 577, 199 L. Ed. 2d 453 (2018); see, e.g., United States v. Clark, 32 F.4th 1080, 1088 (11th Cir. 2022) (“[T]he question is not whether there is an innocent explanation for [the defendant’s] behavior, but rather whether there was probable cause . . . .”). So, even if the scent Officer Brown originally detected was that of hemp rather than marijuana, Green’s “post-hoc innocent explanation for [his] incriminating behavior does not vitiate [the] finding of probable cause.” United States v. Lebowitz, 676 F.3d 1000, 1011 (11th Cir. 2012).[vi]

In other words, to reach the standard of probable cause, the information available to the officer does not need to rule all innocent explanations of the defendant’s conduct. Thus, the possible innocent explanation does not negate the finding of probable cause.

Since the court determined that Officer Brown’s detection of the odor of marijuana provided probable cause to search the vehicle prior to Titan’s sniff, the court did not address Titan’s reliability or whether the canine’s intrusions into the car violated the Fourth Amendment.

The court of appeals affirmed the denial of the motion to suppress.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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[i] No. 24-12642 (11th Cir. July 11, 2025 Unpublished)

[ii] Id. at 1-4

[iii] Id. at 8-9 (emphasis added)

[iv] Id. at 10-11 (emphasis added)

[v] Id. at 11-12

[vi] Id. at 12 (emphasis added)