What’s in a Name? That Which We Call Weed

By Any Other Name Would Smell As Sweet

BY RICK COFER AND MEGAN RUE

Criminal defense attorneys dread one infamous line in an offense report: “I detected what I know through my training and experience to be the odor of marijuana.” This one sentence has stymied innumerable motions to suppress. Prior to 2018, Texas courts consistently held that the odor of marijuana alone provided reasonable suspicion to conduct an investigative detention 1 and provided probable cause for a warrantless search of a vehicle 2 or its occupants 3 during a traffic stop.

Two recent pieces of legislation have radically altered the cannabis regulatory framework. For criminal defense practitioners, understanding these regulatory changes is critical to advancing the novel legal challenges to push back on “odor of marijuana” traffic stops and detentions.

REGULATORY CHANGES

The federal “Farm Bill,” 4 signed in 2018, and the Texas “Hemp Bill,” 5 signed in 2019, both altered the definition of cannabis, a type of flowering plant in the Cannabaceae family. 6 Prior to the passage of the Farm Bill, all cannabis plants were generally considered illegal substances under the federal Controlled Substances Act. 7

The Hemp Bill amended the definition of “marihuana” in the Texas Health and Safety Code to exclude “hemp.” 8 Hemp is defined as cannabis with a THC concentration at or below .3%. 9 The possession of any usable quantity of marijuana—now defined as cannabis with a THC concentration higher than .3%--remains a criminal offense. 10,11 Possession of hemp is not.

What might at first glance read like a trivial definitional change has significant ramifications for criminal defense attorneys and our clients. “Hemp” and “marijuana” are functionally made-up labels for different uses of the same plant. They are differentiated legally only by THC concentration. Determining the THC concentration of either substance requires lab testing. It is impossible to distinguish hemp from marijuana by human sight or by odor alone. 12 More on this below, but dogs can’t smell the difference either.

“Hemp” and “marijuana” are functionally made-up labels for different uses of the same plant. They are differentiated legally only by THC concentration. Determining the THC concentration of either substance requires lab testing. It is impossible to distinguish hemp from marijuana by human sight or by odor alone.

As a result of the reforms to cannabis law, criminal defendants nationwide have begun challenging the “odor of marijuana” as a standalone basis for a reasonable suspicion or probable cause finding. Following passage of the Farm Bill and Hemp Bill, Texas courts have yet to clarify whether the “odor of marijuana” alone still provides reasonable suspicion or probable cause.

THIS IS JUST BEGINNING IN TEXAS

The issue has been raised recently in at least one Texas Court of Appeals. In McAfee-Jackson v. State, the officer conducted a vehicle search after smelling the odor of marijuana coming from the vehicle during a traffic stop. 13 A small amount of marijuana was located during the search. The appellant filed a motion to suppress, arguing that odor of marijuana alone did not provide probable cause for the search because the officer could have smelled legal hemp. At the suppression hearing, the trooper testified that he had probable cause to search the vehicle due to the odor of marijuana, but he conceded that he could not distinguish marijuana from hemp by either appearance or smell. The appellant was found guilty of possession of marijuana. On appeal, the appellant challenged the trial court’s denial of her motion to suppress. Unfortunately, the court declined to rule on the substantive issue because it was not properly preserved.

It will likely not be long before a Texas court of appeals is again confronted with the question of whether the odor of marijuana alone still provides reasonable suspicion or probable cause.

TAKEAWAYS

Many Texas counties continue to prosecute the possession of even small amounts of marijuana, despite the practical reality that state laboratories still appear to have challenges with determining the concentration of THC in a substance. 14 Local law enforcement in many counties will use the odor of marijuana as the sole basis for conducting a probable cause search of a vehicle. Despite changes in the law which legalize the possession of low-level THC cannabis (hemp), no Texas court to date has addressed the issue of whether the odor of marijuana alone still provides reasonable suspicion or probable cause, or whether a positive canine “alert” to cannabis provides probable cause to search. If Texas follows the reasoning of other state courts in similar predicaments, Texas is likely to modify its bright-line rule regarding the odor of marijuana and probable cause. The odor of marijuana—which is indistinguishable from that of legal hemp— cannot alone provide reasonable suspicion of criminal activity since the police cannot distinguish lawful from unlawful conduct based on odor alone. When it comes to the human (or canine) nose, cannabis is cannabis, regardless of its THC concentration. AL

Footnotes

1. Taylor v. State, 20 S.W.3d 51, 56 (Tex. App.—Texarkana 2000, pet. ref’d).

2. Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App. [Panel Op.] 1979).

3. Jordan v. State, 394 S.W.3d 58, 64- 65 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d).

4. Agriculture Improvement Act of 2018, Pub. L. No. 115-661, § 10113 (codified at 7 U.S.C. §§ 1639o—1639s).

5. H.B. 1325, 86th Leg. (Tex. 2019), https://capitol.texas.gov/ tlodocs/86R/billtext/pdf/HB01325F. pdf#navpanes=0.

6. Rupasinghe, H., Davis, A., Kumar, S. K., Murray, B., & Zheljazkov, V. D. (2020). “Industrial Hemp (Cannabissativa subsp. sativa) as an Emerging Source for Value- Added Functional Food Ingredients and Nutraceuticals.” Molecules (Basel, Switzerland), 25(18), 4078.https://doi.org/10.3390/ molecules25184078.

7. Molitor v. City of Scranton, CV 3:20- 1266, 2021 WL 3884463, at *5 (M.D. Pa. Aug. 31, 2021).

8. Tex. Health & Safety Code Ann. § 481.002(26).

9. Tex. Agric. Code § 121.001.

10. Tex. Health & Safety Code Ann. § 481.121(a).

11. The law carves out an exception for individuals who suffer from incurable neurodegenerative diseases (and certain other diagnoses) and have a prescription for low-THC cannabis from a qualified physician.

12.Leson G, Pless P, Grotenhermen F, Kalant H, ElSohly MA. Evaluating the impact of hemp food consumption on workplace drug tests. J Anal Toxicol. 2001 Nov-Dec;25(8):691-8. doi: 10.1093/ jat/25.8.691. PMID: 11765026. (“The primary difference is that marijuana has a higher concentration of the psychoactive compound cannabinoid delta 9tetrahydrocannabinol, more commonly known as THC.”).

13. McAfee-Jackson v. State, No. 09-19- 00430-CR, 2021 Tex. App. LEXIS 7297, at *1 (Tex. App.—Beaumont Sep. 1, 2021). On Appeal from the County Court at Law No. 5, Montgomery County, Tex. Trial Cause No. 19-338240.

14. Michael Barajas, Texas (Kinda, Sorta) Accidentally Decriminalized Weed. Now What?, Tex. Observer (Aug. 20, 2019), www.texasobserver. org/texas-kinda-sortaaccidentallydecriminalized-weed-now-what/ [https://perma.cc/WE9G-JTE3].

Rick Cofer is a partner at Cofer & Connelly, an Austin-based firm representing Texans statewide in criminal cases. He has practiced law for 15 years and tried more than 100 cases to a judge or jury.

Megan Rue is an associate attorney at Cofer & Connelly. She is a co-regional vice president of the National Lawyers Guild and a member of Gideon’s Promise Future Indigent Defense Leaders.