Darryl Bain v. State of Alabama (Appeal from Tuscaloosa Circuit Court: CC-23-379)

Rel: September 27, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
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CR-2024-0321
_________________________

Darryl Bain

v.

State of Alabama

Appeal from Tuscaloosa Circuit Court
(CC-23-379)

KELLUM, Judge.

Pursuant to a plea agreement with the State, Darryl Bain pleaded

guilty to two counts of unlawful possession of a controlled substance

(methamphetamine and alprazolam). See § 13A-12-212(a)(1), Ala. Code

1975. In accordance with the agreement, the trial court sentenced him
CR-2024-0321

to 24 months' imprisonment for each conviction, to run concurrently, but

suspended the sentences, and ordered him to serve 24 months on

probation. Bain expressly reserved the right to appeal the trial court's

denial of his motion to suppress.

The facts are undisputed. In December 2022, after receiving a

telephone call about a suspicious vehicle at a store, police officers found

Bain asleep in his vehicle. The officers woke Bain and ordered him to get

out of his vehicle so they could conduct a patdown of his person. As Bain

exited the vehicle, the officers detected the odor of marijuana. Officers

then searched Bain and the vehicle, finding three alprazolam pills and

methamphetamine. The officers found no marijuana.

Bain moved to suppress the drug evidence on the ground that the

officers did not have probable cause to search him or his vehicle.

Although Bain recognized that Alabama courts have held that the odor

of marijuana provides probable cause to search, he argued that the

"plain-smell doctrine" was outdated in light of Alabama's legalizing

hemp. See § 2-8-381(4) Ala. Code 1975 (defining hemp, in relevant part,

as "[t]he plant Cannabis sativa L. and any part of that plant ... with a

delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent

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on a dry weight basis ... [excluding] marijuana as defined in subdivision

(14) of Section 20-2-2"), and § 20-2-2(14), Ala. Code 1975 (stating that

marijuana "does not include hemp as defined in Section 2-8-381"). Bain

argued that hemp has the same odor as marijuana and that, therefore,

the odor of marijuana should no longer be sufficient to establish probable

cause for a warrantless search. The State stipulated that hemp and

marijuana have the same odor and can be distinguished only through

chemical testing, but argued that the odor of marijuana is still sufficient

to establish probable cause for a warrantless search. The trial court

agreed with the State and denied Bain's motion to suppress.

On appeal, Bain continues to argue that the officers lacked probable

cause to search him or his vehicle because, he says, the odor of marijuana

is indistinguishable from the odor of hemp and is no longer sufficient, by

itself, to establish probable cause.1

The Alabama Supreme Court has held that "[a] police officer's

detecting the smell of raw or burned marijuana coming from a particular

place or person is sufficient to provide probable cause to search that place

1In 2021, Alabama legalized medical marijuana in certain, limited

forms, see § 20-2A-1 et. seq, Ala. Code 1975, but the plant itself remains
illegal.
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CR-2024-0321

or person." Adams v. State, 815 So. 2d 578, 581 (Ala. 2001). This Court

is bound by the decisions of the Alabama Supreme Court and has no

authority to overrule those decisions. See § 12-3-16, Ala. Code 1975.

That being said, to the extent that existing caselaw can be distinguished

from this case on the ground that it was decided before the legalization

of hemp, the probable-cause standard is nonetheless the same and, under

that standard, the odor of marijuana is sufficient to provide probable

cause to search, even with the legalization of hemp.

" ' "Whether there is probable cause to merit
a warrantless search and seizure is to be
determined by the totality of the circumstances.
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983). 'Probable cause exists where
all the facts and circumstances within the officer's
knowledge are sufficient to warrant a person of
reasonable caution to conclude that an offense has
been or is being committed and that contraband
would be found in the place to be searched.'
Sheridan v. State, 591 So. 2d 129, 130 (Ala. Crim.
App. 1991)." State v. Stallworth, 645 So. 2d 323,
325 (Ala. Cr. App. 1994).'

"Woods v. State, 695 So. 2d 636, 640 (Ala. Crim. App. 1996).
'Sufficient probability, not certainty ..., is the touchstone
under the Fourth Amendment.' Allen v. State, 689 So. 2d 212,
216 (Ala. Crim. App. 1995)."

State v. Perry, 66 So. 3d 291, 294 (Ala. Crim. App. 2010).

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" ' "Probable cause is concerned with 'probabilities,' that
'are not technical; they are the factual and practical
considerations of everyday life on which reasonable and
prudent men, not legal technicians act.' " ' Chevere v. State,
607 So. 2d 361, 368 (Ala. Crim. App. 1992), quoting Carter v.
State, 435 So. 2d 137, 139 (Ala. Crim. App. 1982), quoting in
turn Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct.
1302, 93 L.Ed. 1879 (1949).

" ' "Probable cause does not require an officer to
compile an airtight case against a suspect."
Williams v. State, 440 So. 2d 1139, 1145 (Ala. Cr.
App. 1983). "It merely requires that the facts
available to the officer would 'warrant a man of
reasonable caution in the belief' that certain items
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." Texas v. Brown, 460 U.S.
730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502
(1983) (citations omitted).'

"Mewbourn v. State, 570 So. 2d 805, 808-09 (Ala. Crim. App.
1990)."

Harris v. State, 948 So. 2d 583, 587 (Ala. Crim. App. 2006) (emphasis

added).

Because probable cause does not require certainty, but only

probability, we agree with the trial court that the fact that officers cannot

distinguish between hemp and marijuana based on odor alone "does not

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CR-2024-0321

void probable cause." (C. 45.) Other jurisdictions have reached similar

conclusions.

In Moore v. State, 211 N.E.3d 574, 579 (Ind. Ct. App. 2023), the

Indiana Court of Appeals addressed the appellant's claim that, because

"there is no distinction between the odor of legal and illegal cannabis-

derived substances ... the mere odor of marijuana is ... no longer a

sufficient basis for a warrantless search of a vehicle." After recognizing

that several federal district courts had addressed, and rejected, that

exact claim, the Indiana Court of Appeals did the same, stating:

"[W]e apply the test of 'fair probability' to the facts before us.
Although it was equally possible that the strong odor
emanating from the vehicle and detected by Officer Dienhart
was hemp as it was marijuana, these circumstances created a
fair probability -- that is, 'a substantial chance' -- that the
vehicle contained contraband. Eaton v. State, 889 N.E.2d
297, 300 (Ind. 2008). We thus conclude that Officer Dienhart's
detection of the odor of marijuana immediately upon his
arrival at the open window of the car ... provided probable
cause for him to search the car."

211 N.E.3d at 581. In State v. Moore, 408 Wis. 2d 16, 991 N.W.2d 412

(2023), the Wisconsin Supreme Court stated:

"[T]he officers noticed 'a strong smell of marijuana emanating'
from the vehicle Moore was driving. While the officers might
have reasonably inferred that the smell from the vehicle was
[legal] CBD, that was not the only inference they could draw
-- they also could infer (and they did) that the smell was THC.

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It is black letter law that 'an officer is not required to draw a
reasonable inference that favors innocence when there also is
a reasonable inference that favors probable cause.' State v.
Nieves, 2007 WI App 189, ¶14, 304 Wis. 2d 182, 738 N.W.2d
125; see also State v. Waldner, 206 Wis. 2d 51, 60, 556 N.W.2d
681 (1996). Therefore, while an innocent explanation may
exist, we still conclude under the facts of this case, a
reasonable law enforcement officer would infer that Moore
had probably committed or was committing a crime."

408 Wis. 2d at 27, 991 N.W.2d at 417.

The Texas Court of Appeals has also held that the odor of marijuana

is sufficient to establish probable cause to search, even with the

legalization of hemp. In Cortez v. State, (No. 05-21-00664-CR, December

20, 2022) (Tex. Ct. App. 2022) (not reported in South Western Reporter)

(footnote omitted), the Court stated:

"Cortez argues that because marijuana and hemp come from
the same plant, Cannabis sativa L., the difference between
the two [is] impossible to distinguish by smell and therefore,
the possibility of error was invariably present and, thus, the
odor of Cannabis sativa L. is insufficient by itself to establish
probable cause to search. But the possession of marijuana is
still a criminal offense under Texas law and a reasonable,
even if ultimately erroneous conclusion by an officer on the
scene as to the identity of the substance, would be permitted
under the Fourth Amendment. See Health & Safety §
481.121(a). Therefore, we conclude the odor of Cannabis
sativa L. emanating from Cortez's vehicle gave the officer
probable cause to search the vehicle as well as its occupants."

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See also State v. Bishop, [Ms. No. W2023-00713-CCA-R3-CD, April 11,

2024] ___ S.W.3d ___ (Tenn. Crim. App. 2024) ("Despite Sergeant

Rogers's admitted inability to distinguish between the smell of hemp and

marijuana, the record demonstrates a 'fair probability, given the totality

of the circumstances, that contraband or evidence [would] be found' in

the Defendant's car, thus, meeting the standard for establishing probable

cause. See United States v. Vaughn, 429 F. Supp. 3d 499, 510 (E.D. Tenn.

2019) (citations omitted)."); State v. Withrow, 194 N.E.3d 804, 810-11

(Ohio Ct. App. 2022) (holding that "[t]he fact that illegal marijuana and

legal forms of hemp have the same odor is irrelevant so long as some

forms of marijuana remain illegal."); Owens v. State, 317 So. 3d 1218,

1220 (Fla. Dist. Ct. App. 2021) ("[T]he recent legalization of hemp, and

under certain circumstances marijuana, does not serve as a sea change

undoing existing precedent, and we hold that regardless of whether the

smell of marijuana is indistinguishable from that of hemp, the smell of

marijuana emanating from a vehicle continues to provide probable cause

for a warrantless search of the vehicle."); State v. Desir, (No. A-3581-

18T1) (N.J. Sup. Ct. 2020) (not reported in Atlantic Reporter) ("[T]he

CUMMA [Compassionate Use Medical Marijuana Act] did not replace the

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'plain smell' doctrine. Rather, the CUMMA 'create[d] a limited exception

allowing possession of marijuana for medical use by qualifying patients

who obtain the appropriate registry identification card.' [State v.] Myers,

442 N.J. Super. [287,] 298, 303[, 122 A.3d 994, 1000 (N.J. Super. Ct. App.

Div. 2015)] (holding the odor of marijuana gave police probable cause to

arrest defendant absent any indication that defendant, or anyone in his

car, was a registered qualifying patient or otherwise authorized to

possess medical marijuana)."); People v. Wheeler, (No. 2-18-0162) (Ill. Ct.

App. 2020) (not reported in North Eastern Reporter) ("[N]otwithstanding

the possible possession and use of medical cannabis for medical purposes,

the smell of burnt cannabis emanating from inside a vehicle continues to

provide probable cause to search that vehicle."); and State v. Cheatham,

240 Ariz. 1, 3, 375 P.3d 66, 68 (2016) (holding that, even after the

legalization of medical marijuana, "the odor of marijuana, without more,

provides probable cause that a crime has occurred or is occurring").

Compare State v. Torgerson, 995 N.W.2d 164 (Minn. 2023), and

Commonwealth v. Shaw, 246 A.3d 879 (Pa. Super. Ct. 2021) (both holding

that the odor of marijuana is not sufficient, by itself, to establish probable

cause to search).

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CR-2024-0321

We agree with the courts in those jurisdictions that have held that

the odor of marijuana, even with the legalization of hemp, is sufficient,

by itself, to establish probable cause to search. Possession of marijuana

is still largely illegal in Alabama, and the odor of marijuana emanating

from a person or place would warrant a person of reasonable caution to

believe that contraband may be found. The fact that the odor may also

indicate the presence of a legal substance does not negate the probability

that an illegal substance may be found. Therefore, we hold that, even

with the legalization of hemp, the odor of marijuana emanating from a

person or a place is sufficient to establish probable cause to search. Here,

the officers smelled the odor of marijuana as Bain got out of his vehicle

and that odor provided sufficient probable cause to search Bain and the

vehicle. Therefore, the trial court properly denied Bain's motion to

suppress.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

Windom, P.J., and McCool, Cole, and Minor, JJ., concur.

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