Shepard, S.J.
In this interlocutory appeal, Cody Moore challenges the trial court’s denial of his motion to suppress. He argues that the similarity in smell of marijuana and legal hemp is fatal to the search. Concluding that Moore’s rights were not violated, we affirm.
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Separately claiming violations of both the federal and state constitutions, Moore contends: (1) the purpose of the traffic stop was complete prior to the search of the car and there was no reasonable suspicion to detain him beyond the reason for the stop; and (2) the officer lacked probable cause to search the car.
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Moore next alleges that the officers did not have probable cause to search the car.
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Pertinent to Moore’s claim is that our General Assembly has amended state law to recognize the legality of some forms of cannabis containing low levels of THC. See Ind. Code § 15-15-13-6 (2019) (defining “hemp” as any part of the cannabis plant, including derivatives and extracts, with a delta-9tetrahydrocannabinol concentration of not more than three-tenths of one percent (0.3%)). And marijuana and hemp purportedly have indistinguishable odors…
Here, Moore asserts there is no distinction between the odor of legal and illegal cannabis-derived substances and argues that the mere odor of marijuana is thus no longer a sufficient basis for a warrantless search of a vehicle. Not surprisingly, this topic has created much debate in the last few years as more and more states legalize cannabis-derived substances.
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Some federal courts have had recent occasion to address the argument presented by Moore, and they have rejected it. In United States v. Vaughn, 429 F. Supp. 3d 499 (E.D. Tenn. 2019), the court found probable cause for the issuance of a search warrant based in part upon the officers smelling the odor of marijuana when the defendants’ apartment door was opened. The defendants argued the odor the officers detected could have been hemp, but the court applied the “fair probability” test and found probable cause. The court held:
Probable cause for a search warrant requires “a fair probability, given the totality of the circumstances, that contraband or evidence will be found in a particular place.” Absolute certainty is not required. As a result, Defendants’ contention that the smell could have been hemp does not change the fact that it also could be, and was, marijuana. The officers’ detection of a marijuana odor meant there was a fair probability that marijuana would be found within the apartment, which is sufficient for probable cause.
Id. at 510 (internal citations omitted).
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In accord with these holdings were: United States v. Boggess, 444 F. Supp. 3d 730 (S.D.W. Va. 2020) (where defendant asserted that, due to legalization of hemp, precedent of odor of marijuana providing probable cause to search should be revisited because marijuana and hemp cannot be distinguished by smell, court recognized both nationwide movement to legalize or decriminalize marijuana and fact that possession of marijuana remains criminal offense under West Virginia state law and federal law and held there was probable cause to search where officer’s belief that there was illegal contraband in defendant’s vehicle was reasonable based on odor of marijuana emanating from vehicle) and United States v. Bignon, No. 18-CR-783 (JMF), 2019 WL 643177 (S.D.N.Y. Feb. 15, 2019) (finding officer had probable cause even if he reasonably, but mistakenly, believed he smelled marijuana given the close similarity of marijuana and hemp), aff’d by No. 19-2050, 813 F. App’x 34 (2nd Cir. N.Y. May 19, 2020).
Accordingly, we 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 driven by Moore provided probable cause for him to search the car.
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With respect to the remaining factors, the degree of police intrusion on Moore’s ordinary activities was slight as Dienhart initially stopped Moore due to the car’s license plate being both expired and registered to a different vehicle. And, Officer Dienhart’s conduct in making the stop was appropriate to the enforcement of traffic laws, and his subsequent search of the car Moore was driving was consistent with law enforcement’s responsibility to deter crime, to intercept criminal activity, and to apprehend its perpetrators. See State v. Washington, 898 N.E.2d 1200 (Ind. 2008). We conclude the warrantless search was reasonable in light of the totality of the circumstances and therefore did not violate Moore’s rights under article 1, section 11.
We conclude the trial court did not abuse its discretion in denying Moore’s motion to suppress the evidence seized as a result of the stop.
Affirmed.
Pyle, J., and Weissmann, J., concur.