On June 25, 2021, the Court of Appeals of Georgia decided Gowen v. State[i], in which the court examined whether the similarity of the odor of hemp and marijuana meant that the “odor of marijuana” no longer provides probable cause to search a vehicle under the automobile exception. The relevant facts of Gowen, taken directly from the case, are as follows:
[T]he record shows that while on patrol in downtown Athens, Officer Jackson Fields of the Athens-Clark County Police Department observed a minivan driving through a local apartment complex and ran a check of the vehicle’s license plate. The check showed that a United States Marshal’s warrant had been issued for Gowen, the registered owner of the van. Because he was not familiar with this type of warrant, Fields did not conduct a traffic stop of the van, but instead obtained further information and determined that the warrant was valid. A short time later, Fields saw the van parked in a public parking lot and he also saw Gowen moving away from the vehicle, toward the entrance of a walking trail. Fields approached Gowen and asked to speak with him; the officer and his partner then detained Gowen until they could confirm the details of the warrant. As they were waiting to learn more about the warrant, Gowen asked police if he could call his sister, who was an attorney. The officers agreed to the request, and Gowen gave Fields the keys to his van and asked the officer to retrieve Gowen’s cell phone from the center console. According to Fields, when he opened the van, he detected the odor of burnt marijuana.
At about the time Gowen spoke with his sister, police learned that the federal warrant was for amphetamines, had been issued a month earlier, and was the product of an investigation by a local drug task force. Police then arrested Gowen pursuant to the warrant. Following the arrest, police executed a search of the van, believing that the odor of marijuana and the fact that the federal warrant was for amphetamines provided probable cause for the search. During the search, officers found a small, white, yellowish rock that appeared to Fields to be crack cocaine, some “loose marijuana shakes” inside a black box, and some “smoking devices.”[ii]
Gowen was charged with possession of cocaine. He filed a motion to suppress and argued that the officers lacked probable cause to search his vehicle based on the odor of marijuana because, on May 10, 2019, the Georgia legislature passed the Georgia Hemp Farming Act, OCGA § 2-23-1 et seq. (“GHFA” or “the Act”). “This Act legalized the licensed cultivation of hemp with a specifically defined level of THC, the manufacture of products from that hemp, and the possession of those products.”[iii] Gowen argued that, since hemp and marijuana have similar odors, the odor of marijuana can no longer provide probable cause because an officer cannot distinguish between the odor of hemp, which is legal, and marijuana, which is illegal. Gowen also contended that the leaves found in his vehicle may have been hemp and that could have caused the smell that the officer perceived. The officer testified at the motion to suppress that he was trained on the odor of marijuana and was not trained in the odor of hemp, but did know that they had a similar odor. The trial court rejected Gowen’s argument that the police must be able to distinguish between the odor of marijuana and hemp and denied the motion to suppress.
Gowen then appealed the denial of his motion to suppress to the Court of Appeals of Georgia.
The court of appeals noted that the current law in Georgia is that the odor of marijuana detected by an officer that recognized that odor based on his knowledge, training and experience provides the officer with probable cause. The court stated
[U]nder our precedent, the odor of marijuana emanating from a vehicle provides police with probable cause to search [*6] that vehicle. See Jones v. State, 319 Ga. App. 678, 679 (738 SE2d 130) (2013) (“The fact that the officer detected the odor of marijuana emitting from [the defendant’s] car provided probable cause to believe that the car contained drug contraband, which authorized the search of the car.”); State v. Folk, 238 Ga. App. 206, 209 (521 SE2d 194) (1999) (“[A] trained police officer’s perception of the odor of burning marijuana, provided his ability to identify that odor is placed into evidence, constitutes sufficient probable cause to support the warrantless search of a vehicle.”). See also Douglas v. State, 303 Ga. 178, 182 (2) (811 SE2d 337) (2018).[iv]
On appeal, Gowen argued that, because hemp is now legal in Georgia, and since hemp and marijuana are similar in smell and appearance, the court of appeals “should find that an officer’s detection of an odor indicating the presence of marijuana cannot provide probable cause for the warrantless search of a vehicle.”[v]
The court of appeals began its analysis by explaining the Georgia Hemp Farming Act (GHFA). The court explained the GHFA and stated
The GHFA defines “hemp” as “the Cannabis sativa L. plant and any part of such plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with the federally defined THC level for hemp or a lower level.” OCGA § 2-23-3 (5). And it defines “hemp products,” in relevant part, as “all products with the federally defined THC level for hemp derived from, or made by, processing hemp plants or plant parts that are prepared in a form available for legal commercial sale … .” OCGA § 2-23-3 (6). The Act also allows entities or individuals who have been licensed and/or permitted by the Georgia Department of Agriculture to grow hemp and process it into hemp products, which may be sold to consumers. OCGA §§ 2-23-5; 2-23-6; 2-23-3 (10) (A). As used in the Act, however, the terms “process” and “processing” do not include “[m]erely placing raw or dried material into another container or packaging raw or dried material for resale[.]” OCGA § 2-23-3 (10) (B) (i). Indeed, the GHFA makes it unlawful for “[a]ny person to offer for sale at retail the unprocessed flower or leaves of the hemp plant[.]” OCGA § 2-23-4 (a) (7). Accordingly, the Act does not allow the possession of raw hemp — i.e., hemp that has not yet been processed into a different product — by anyone other than a licensee or permitee of the Georgia Department of Agriculture. The GHFA, therefore, does not authorize making hemp available to individual consumers in a form that resembles raw marijuana.[vi]
Thus, the GHFA prohibits the sale and possession of raw hemp unless the person in possession is licensed processor under the Act. Additionally, the Court of Appeals noted that there is no evidence in the record that there exists a legally processed hemp product that is designed to be burned or smoked. As such, if the leaves in his vehicle were hemp leaves, the possession of the hemp would not be authorized by the GHFA.
The court of appeals then held that, for the reasons above, “the smell of burnt marijuana in Gowen’s van provided police with probable cause to search that vehicle. See Jones, 319 Ga. App. at 679 (1).”[vii]
Gowen also argued the cocaine should be suppressed because when the officer found it while searching for marijuana, the cocaine was not readily apparent to be contraband.
The court examined the legal principles relevant to Gowen’s position and stated
A police officer who, during the course of a lawful search, discovers what he suspects is contraband is authorized to seize the item. OCGA § 17-5-1 (b). See also Glenn v. State, 285 Ga. App. 872, 874 (648 SE2d 177) (2007) (“[I]t is well settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.”) (citation and punctuation omitted). Despite Gowen’s assertions to the contrary, however, “[t]here is no requirement that the officer know with certainty that the item is [contraband] at the time of the seizure, only that there be probable cause to believe that this is the case.” (Citation and punctuation omitted.) Miller v. State, 261 Ga. App. 618, 620 (1) (583 SE2d 481) (2003). And probable cause to believe that a substance is contraband requires only that the facts available to the officer would warrant a man of reasonable caution in the belief that [the item] may be contraband … ; it does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability that incriminating evidence is involved is all that is required. Citation and punctuation omitted.) Combs v. State, 271 Ga. App. 276, 277 (609 SE2d 198) (2005).[viii]
The court of appeals then examined the evidence in the record, specifically that the officer was trained and experience in drug recognition, to include cocaine and crack cocaine. The officer testified to this and testified that when he found the substance, he believed it was crack cocaine. The court of appeals then held that, based on the evidence, the officer had probable cause to suspect the item seized from the van was contraband, and the seizure, therefore, was justified.
The court of appeals then affirmed the denial of the motion to suppress.
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Citations
[i] A21A0651 (Ga. App. Decided June 25, 2021)
[ii] Id. at 2-3
[iii] Id. at 3-4
[iv] Id. at 5-6 (emphasis added)
[v] Id. at 6
[vi] Id. at 6-8 (emphasis added)
[vii] Id. at 8 (emphasis added)
[viii] Id. at 9-10 (emphasis added)
