ÌÒ×ÓÊÓƵ

This case arises from the trial court’s denial of the defendant, Torrian Seantel Bishop’s motion to suppress, on U.S. and Tennessee Constitutional grounds, evidence found during a police search of his car. The trial court’s ruling rested entirely on its conclusion that the smell of cannabis supplied probable cause to search the car. Following this holding, Bishop entered an Alford plea and expressly reserved a question for appeal pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure. In its initial review of this case, the Court of Appeals held that this certified question was dispositive, proceeded to the merits, and affirmed the trial court, holding that, although the officer could not differentiate between the odor of lawful hemp and the odor of unlawful marijuana, conducting a search based on odor alone was constitutional.

In a later similar case, State v. Green, the Tennessee Supreme Court held otherwise, writing that the odor of cannabis cannot alone supply probable cause and that the trial court instead must look to the totality of the circumstances. Bishop’s case was remanded back to the Court of Appeals for reconsideration in light of the decision in Green. On remand, the Court of Appeals held that the certified question was no longer dispositive as it had been incumbent on Bishop to formulate a certified question asking whether there were additional facts, beyond odor, that could have justified denying his motion to suppress.

The ACLU’s State Supreme Court Initiative and Criminal Law Reform Project, along with the ÌÒ×ÓÊÓƵof Tennessee, filed an amicus brief arguing that the Tennessee Supreme Court should hold that an officer’s alleged detection of the odor of cannabis—without at least some other specific, articulable fact to bolster a reasonable belief that criminal activity is occurring—is insufficient to establish probable cause to conduct a warrantless search of a vehicle.

The brief further argues that Bishop’s certified question plainly satisfied Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure, which provides a mechanism for defendants to reserve an appeal while entering a plea of guilty or nolo contendere. The certified question in this case asked whether, as the trial court held, probable cause arose exclusively from the odor of marijuana. The answer to that question is no. And the hypothetical possibility that the trial court might have denied the motion to suppress if it had applied a totality-of-the-circumstances test does not make the certified question any less dispositive. Furthermore, the Court of Appeals’ construction of Rule 37(b)(2)(A) raises serious constitutional concerns under both the U.S. and Tennessee Constitutions and should thus be rejected.