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Does "Odor of Marijuana" still satisfy probable cause?

One of many seemingly unintended results of the recent law changes in Virginia regarding prohibited marijuana and legal industrial hemp and hemp products is the long-held position of the courts that an officer's testimony that he or she detected an "odor of marijuana" satisfies probable cause sufficient to justify the warrantless search of a person, a motor vehicle, or a dwelling. However, no distinctions have been made in this analysis do direct the courts or law enforcement following the Virginia legislature's removal from prohibition of industrial hemp and hemp products. This begs the question - should "odor of marijuana" along still satisfy probable cause when industrial hemp and hemp products are indistinguishable from prohibited marijuana in sight and smell?

Under the Fourth Amendment, "[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Joyce v. Commonwealth, 56 Va. App. 646, 658 (2010) (quoting Atwater v. Lago Vista, 532 U.S. 318, 354 (2001)). "Once `probable cause exists to arrest a person, a constitutionally permissible search of the person incident to arrest may be conducted by an officer either before or after the arrest if the search is contemporaneous with the arrest.'" Slayton v. Commonwealth, 41 Va. App. 101, 108 (2003) (quoting Italiano v. Commonwealth, 214 Va. 334, 336 (1973)).

"[P]robable cause exists when the facts and circumstances within the officer's knowledge . . . alone are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed." McGhee v. Commonwealth, 280 Va. 620, 624 (2010) (quoting Jones v. Commonwealth, 279 Va. 52, 59 (2010)). "Courts employ a `common sense approach' not a `hypertechnical, rigid, and legalistic analysis' when reviewing probable cause determinations." Powell v. Commonwealth, 57 Va. App. 329, 335 (2010) (quoting Derr v. Commonwealth, 242 Va. 413, 421 (1991)). "[P]robable cause `requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.'" Id. at 336 (quoting Illinois v. Gates, 462 U.S. 213, 245 n.13 (1983)). Thus, "it is not necessary for the facts to be `sufficient to convict' the accused of the offense." Slayton, 41 Va. App. at 107 (quoting Gomez v. Atkins, 296 F.3d 253, 262 (2002)).

The law in Virginia regarding probable cause and the odor of marijuana has been reasonably settled since United States v. Humphries, 372 F.3d 653, 660 (4th Cir. 2004). Virginia Code § 18.2-250 makes it unlawful to possess a controlled substance, including prohibited marijuana. The Fourth Circuit described their analysis in Humphries as follows: "[I]f an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana." Bunch v. Commonwealth, 51 Va. App. 491, 496 (2008) (quoting United States v. Humphries, 372 F.3d 653, 660 (4th Cir. 2004)).

Importantly, neither Bunch nor Humphries contemplated recent changes to Virginia Code §18.2-250 and §18.2-247, enacted following the passage of the 2018 Federal Farm Bill (21 U.S.C. §§ 801 et seq.) which removed certain strains and classifications of Cannabis sativa from prohibition. Va. Code §18.2-247 (in relevant part) defines “marijuana” for purposes of prohibition under §18.2-250. Since March 21 of 2019, this definition of prohibited “marijuana” specifically exempts BOTH raw industrial hemp possessed by registered persons AND hemp products “containing tetrahydrocannabinol concentration of no greater than 0.3 percent that is derived from industrial hemp… that is grown, dealt, or processed in compliance with state and federal law” (VA Code §18.2-247(D)(ii)).

Marijuana and industrial hemp are different strains of the Cannabis sativa plant. According to the Virginia Department of Forensic Science, differences between varying strains of Cannabis sativa are not detectable to human sight, touch, or smell. The only mechanism to distinguish legal hemp plant material from prohibited marijuana plant material is to conduct a quantitive analysis to determine the tetrahydrocannabinol (THC) concentration of the plant material. Current marijuana field tests (Duquenois-Levine) approved by the Virginia Department of Forensic Science are only capable of presumptively identifying Cannabis sativa plant material, and do not make even a preliminary test for the mere presence of THC, let alone a quantitive indication of levels or percentages of THC. Because differences in THC levels between different strains of Cannabis sativa are undetectable to human senses, a simple “odor of marijuana”, alone, is no longer sufficient for determination with any degree of certainty whether or not a person is in possession of prohibited, high-THC products or material derived from the Cannabis sativa plant. (See “NOTICE REGARDING MARIJUANA FIELD TESTS AND CHANGES TO THE DEPARTMENT’S ANALYTICAL AND REPORTING SCHEME FOR MARIJUANA AND MARIJUANA BYPRODUCTS”, memoranda to All Agencies Serviced by the Department of Forensic Science (DFS) Laboratories dated May 23, 2019 from Linda C. Jackson, Director of the Virginia DFS (attached))

Very often in cases involving seizure, arrest and search, no other detection or description is described by the arresting officer other than “odor of marijuana”. Virginia Code § 3.2-4112 defines “industrial hemp” as “any part of the plant Cannabis sativa… whether growing or not… with a concentration of tetrahydrocannabinol that is no greater than that allowed by federal law” . The same code section defines “hemp product” as “any finished product… that is otherwise lawful and contains industrial hemp”. Examples of what might fall into the categories of “industrial hemp” and “hemp products” are also included in the respective definitions, and seem intended to open a fairly wide, non-exhaustive, and overlapping interpretation. However, to apply the “common sense” approach favored by the court in Derr v. Commonwealth, 242 Va. 413, 421 (1991): if an apple is a finished “product” of an apple tree, then the dried or even minimally-processed flowers or leaves of Cannabis sativa is a “product” of that plant as well. This material is precisely what many officers are trained would emit the “odor of marijuana” described in testimony.

If a seeming majority of law enforcement officers in Virginia are currently factually untrained and unable to distinguish between prohibited and legal strains of Cannabis sativa, the Commonwealth is unable to present any "probability or substantial chance of criminal activity'" required to satisfy “probable cause” as described in Illinois v. Gates, 462 U.S. 213, 245 n.13 (1983). Therefore, shouldn't the “odor of marijuana” described by the officer fail to satisfy the probable cause standard for warrantless seizure, search, and arrest?

As of the date of this writing, U.S. v. Humphries is still good law. However, it would not surprise us in the least to see this issue revisited, either by the appellate courts or state and federal legislature based on this issue.

As always, every case is different. If you or someone you know is charged under the marijuana prohibition statute, you deserve an attorney who is addressing these important legal questions. COTU Law Office is on standby to help you.

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