Weissmann, J.
While Reginald Akins Jr. was being arrested on outstanding warrants and for driving with a suspended license, a police narcotics-detection dog alerted to Akins’s vehicle. A subsequent search uncovered methamphetamine, cocaine, heroin, and drug paraphernalia. Akins failed to appear for his jury trial but was tried and convicted in absentia of three drug-related offenses and for driving while suspended. He was also found to be a habitual offender.
On appeal, Akins challenges the constitutionality of the search, arguing that Indiana’s legalization of hemp—a cannabis product indistinguishable by scent from marijuana—undermines the value of a dog alert where the dog is trained to detect marijuana. Although hemp’s legalization may reduce the evidentiary weight of such a dog alert, it does not render the alert meaningless. Akins has therefore failed to show that the search of his vehicle was unconstitutional.
Akins also contends that the State committed prosecutorial misconduct by using its own prosecutor to identify him and his prior convictions during the habitual-offender proceeding. We agree that the prosecutor engaged in misconduct but find it did not rise to the level of fundamental error, which is required for Akins’s unpreserved claim. We therefore affirm.
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In 2019, Indiana amended its statutes to legalize hemp, which is defined as the parts of a cannabis plant containing no more than 0.3% delta-9 tetrahydrocannabinol (delta-9 THC). Cannabis exceeding that threshold remains “marijuana,” a Schedule I controlled substance.
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Indiana courts have recognized the practical implications of this statutory change. In Fedij, this Court reversed a marijuana conviction where the State failed to prove the seized plant material exceeded the 0.3% delta-9 THC threshold. 186 N.E.3d at 709. And in Moore, this Court found that, despite the indistinguishable odors of hemp and marijuana, a police officer’s detection of marijuana odor can still provide probable cause for a search after hemp’s legalization. 211 N.E.3d at 581.
Though factually distinguishable from Akins’s case, Moore is instructive. Like the police officer in that case, Rasse could not distinguish between the odors of hemp and marijuana. However, Rasse’s general alert is different from the officer’s direct detection of the odor because a dog cannot explain its response or the circumstances leading to its alert. In recognition of this difference, courts assess the reliability of a dog alert by looking to external factors such as the dog’s training, certification, and field performance. See Florida v. Harris, 568 U.S. 237, 246-47 (2013).
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Akins argues that Rasse’s alert could not establish probable cause because the dog could not distinguish between illegal marijuana and legal hemp. In his view, an alert “equally consistent with an illegal substance and a legal one” cannot establish probable cause because probable cause requires a showing that illegal activity is “more likely than not.”
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Moore held that the odor of marijuana can establish probable cause under the Fourth Amendment even after hemp’s legalization. 211 N.E.3d at 579-81. This is consistent with longstanding precedent recognizing that even innocent activity may supply a basis for probable cause and that officers are not required to resolve ambiguity before acting. See Gates, 462 U.S. at 243 n.13; Hodges, 125 N.E.3d at 582-83. Probable cause frequently arises from facts consistent with both lawful and unlawful conduct. The Fourth Amendment tolerates that imprecision because it is a “practical and common-sensical standard” grounded in probabilities. McKinney, 212 N.E.3d at 702.
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The overarching principles set out in Moore are instructive here, even though we recognize the factual differences between that case and the one at hand: namely, that the detection here was made by a police dog rather than a human officer. However, that difference does not automatically compel a different result. Instead, we assess the reliability of Rasse’s alert under the same totality of-the-circumstances framework that governs other probable-cause determinations. This includes the scope of the dog’s training and what the alert reasonably signaled at the time. See Harris, 568 U.S. at 248.
Rasse was undisputedly trained and certified to detect multiple controlled substances: marijuana, methamphetamine, cocaine, and heroin. He could also detect substances that contain THC but not at high enough levels to constitute marijuana, which suggests he could alert to hemp. Rasse issued a general alert without identifying a specific substance. That this alert could have been triggered by hemp is just one lawful explanation among several other unlawful ones; i.e. the alert still could have indicated marijuana, methamphetamine, cocaine, and heroin. Though the legalization of hemp may weaken the inference drawn from a canine alert by introducing one legal substance into the mix of other illicit ones, it does not eliminate the alert’s evidentiary value.
Rasse’s alert carried practical significance for police because it occurred against a backdrop of circumstances suggesting ongoing criminal activity. At the time of the dog sniff, Officer Bradford knew that Akins was driving with a suspended license and had outstanding felony warrants. She had also observed his vehicle at a known drug house earlier that day and was familiar, through prior police contacts, with Akins’s involvement in narcotic activity. This information provided context for evaluating the significance of Rasse’s alert. See id. (probable cause turns on whether all facts surrounding dog’s alert would lead reasonably prudent person to think contraband might be found).
In sum, the fact that legal hemp shares characteristics with illegal marijuana does not categorically disable law enforcement from relying on trained canine alerts that could indicate either substance. Akins’s proposed rule, under which probable cause disappears whenever lawful and unlawful explanations are plausible, finds no support in Fourth Amendment jurisprudence. Rasse’s alert, considered alongside Officer Bradford’s independent knowledge of the surrounding circumstances, supported a fair probability that contraband would be found in Akins’s car. Akins therefore fails to demonstrate a violation of the Fourth Amendment.
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Hemp’s legalization may diminish, but does not eliminate, the evidentiary value of canine alerts by dogs like Rasse who can detect THC along with other substances. The possibility that these canine alerts could indicate legal hemp reduces but does not negate the inference of criminal activity. When assessing the constitutional validity of a search flowing from a canine who can alert to legal hemp, that alert remains relevant evidence, though the surrounding circumstances known to officers become particularly important.
Here, Rasse was trained to detect four illegal substances in addition to hemp. This, coupled with Officer Bradford’s knowledge of Akins’s outstanding warrants, suspended license, prior narcotics involvement, and his vehicle’s presence at a known drug house, supported the constitutionality of the search that followed Rasse’s alert.
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The canine alert, considered under the totality of the circumstances, supported probable cause for the search of Akins’s vehicle under the Fourth Amendment to the United States Constitution. It also rendered the search reasonable under Article 1, Section 11 of the Indiana Constitution. And although the State committed prosecutorial misconduct during the habitual-offender phase by calling its own prosecutor as an identification witness, that misconduct did not rise to the level of fundamental error. We therefore affirm.
May, J., and Foley, J., concur.