NASHVILLE, Tenn. (WKRN) — Hemp versus marijuana - do you know the difference? For starters, hemp is legal in Tennessee and marijuana is not. But, both look and smell a lot alike, and that can cause confusion with drug-sniffing dogs.
For decades, a drug-sniffing dog had it pretty easy: smell marijuana, and alert the officer. But, the past few years that changed. Hemp became legal but marijuana remains illegal, yet both have a similar odor. Criminal Defense Attorney Ben Raybin says that created a little confusion for police dogs.
"The defense lawyers have been trying to make the argument that, 'Hey, that shouldn't be enough to arrest somebody, because it can be a perfectly legal product,'" said Raybin.
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Hemp is legal. It has very low levels of THC, and doesn't give users a high. Marijuana, on the other hand, has high levels of THC and can make you high, which is why it's illegal. But, both are technically cannabis and smell similar. So what are police and police dogs to do? Recently, the Tennessee Supreme Court weighed in.
A suspect claimed police dogs should not have searched him because there is no way of knowing by odor whether it's legal hemp or illegal marijuana. The court reaffirmed that there has to be more than one reason for a search.
Raybin wrote the amicus brief on behalf of the Tennessee Association of Criminal Defense Lawyers.
"The Tennessee Supreme Court has recognized that by saying that probable cause is always based on the circumstances and not just one thing," said Raybin. "It ultimately is a good thing for the citizens of Tennessee, generally speaking, just because it makes it harder for us to get stopped and searched just from an odor of something you may be doing completely legitimately."
But attorney Linda Sharer, a traffic safety resource prosecutor, says this is not necessarily a sea change; the decision is simply the court reinforcing what has always been protocol for police dogs.
"Probable cause has always been determined based on the totality of the circumstances," said Sharer. "The dog sniff, and the indication by the dog itself, is just going to be part of that equation. It's always been."