FILED May 26 2023, 8:33 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE M. Slaimon Ayoubi Theodore E. Rokita Indianapolis, Indiana Attorney General of Indiana
Robert M. Yoke Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Cody Moore, May 26, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CR-1979 v. Appeal from the State of Indiana, Marion Superior Court Appellee-Plaintiff. The Honorable William J. Nelson, Judge
The Honorable Mark F. Renner, Magistrate
Trial Court Cause No. 49D18-2008-F6-26849
Opinion by Senior Judge Shepard Judges Pyle and Weissmann concur.
Shepard, Senior Judge.
Court of Appeals of Indiana | Opinion 22A-CR-1979 | May 26, 2023 Page 1 of 15 [1] 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.
Facts and Procedural History [2] In August 2020, Indianapolis Metropolitan Police Department Officer Ryan
Dienhart performed a license plate check on a blue Volkswagen vehicle that
was traveling in front of him. The check revealed that the license plate was
both expired and registered to a different vehicle—a gray Jeep. Based on this
information, Officer Dienhart stopped the car. Dienhart identified Moore as
the driver of the car and immediately smelled a strong odor of marijuana.
Initially, Moore refused to exit the car, but he eventually complied, and officers
searched the car. Officers found five bundles of cash totaling about $5,000 in a
backpack on the front passenger floorboard. Appellant’s App. Vol. II, p. 24
(Aff. Prob. Cause). In another backpack in the trunk, officers found four large
plastic bags of raw marijuana as well as more cash that totaled over $6,500. Id.
at 24-25. The total weight of the recovered marijuana was approximately three
and one-half pounds. Id. at 25.
[3] The State charged Moore with dealing in marijuana, a Level 6 felony;
possession of marijuana, a Class B misdemeanor; and resisting law
enforcement, a Class A misdemeanor. Moore moved to suppress the items
Court of Appeals of Indiana | Opinion 22A-CR-1979 | May 26, 2023 Page 2 of 15 seized from the car, and following a hearing, the trial court denied the motion.
The trial court also denied Moore’s motion to reconsider.
Issue [4] Moore’s sole contention in this appeal is that the trial court erred by denying his
motion to suppress the evidence obtained pursuant to the search.
Discussion and Decision [5] “We review the denial of a motion to suppress similar to claims challenging the
sufficiency of the evidence.” Meek v. State, 950 N.E.2d 816, 819 (Ind. Ct. App.
2011), trans. denied. We do not reweigh the evidence. State v. Jones, 191 N.E.3d
878 (Ind. Ct. App.), trans. denied, 197 N.E.3d 823 (Ind. 2022). We construe
conflicting evidence in the light most favorable to the trial court’s ruling, and
we also consider any substantial and uncontested evidence favorable to the
defendant. Id. We will affirm the decision of the trial court if it is supported by
substantial evidence of probative value. Meek, 950 N.E.2d 816. If a motion to
suppress concerns the constitutionality of a search or seizure, it presents a legal
question that we review de novo. Marshall v. State, 117 N.E.3d 1254 (Ind.
2019).
[6] 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. Court of Appeals of Indiana | Opinion 22A-CR-1979 | May 26, 2023 Page 3 of 15 A. Fourth Amendment [7] Moore first argues a violation of the Fourth Amendment, which protects
against unreasonable searches and seizures. The stop of a vehicle and detention
of its occupants constitute a seizure within the meaning of the Fourth
Amendment, even though the purpose of the stop is limited and the resulting
detention is brief. Thayer v. State, 904 N.E.2d 706 (Ind. Ct. App. 2009). If a
detention exceeds its proper scope, any items seized must be excluded from
evidence as fruit of the poisonous tree. Id. (quoting U.S. v. Hill, 195 F.3d 258,
264 (6th Cir. 1999), cert. denied).
1. Reasonable Suspicion for Further Detention
[8] Traffic violations, even minor ones, create probable cause for officers to stop a
vehicle. State v. Torres, 159 N.E.3d 1018 (Ind. Ct. App. 2020) (quoting State v.
Quirk, 842 N.E.2d 334 (Ind. 2006)). But once the purpose of the traffic stop is
completed, a motorist cannot be further detained unless something occurred
during the stop to cause the officer to have a reasonable and articulable
suspicion that criminal activity was occurring. Thayer, 904 N.E.2d 706 (quoting
Hill, 195 F.3d at 264).
[9] Although Moore concedes that his operation of a vehicle with an expired
license plate justified the initial stop, he asserts the circumstances of the traffic
stop did not establish reasonable suspicion that criminal activity was occurring
to justify further detention. He maintains that Officer Dienhart’s drug
Court of Appeals of Indiana | Opinion 22A-CR-1979 | May 26, 2023 Page 4 of 15 investigation “began well after the mission and purpose of the stop was
accomplished.” Appellant’s Br. p. 15.
[10] At the suppression hearing, Officer Dienhart testified that he made contact with
Moore at the passenger window. Moore told the officer the car was a rental
and that he did not have the paperwork with him. Moore then made a call,
allegedly to the rental company, to obtain the paperwork. Dienhart testified
that “upon initial contact and during the entirety” of his conversation with
Moore, he “detected the strong odor of marijuana emanating from inside the
car.” Tr. Vol. 2, p. 31. The officer stated that “the odor was so strong and
apparent that I just came . . . right out and ask[ed] [him] how much marijuana
is inside the car.” Id. at 32. Dienhart explained that Moore “denied any
presence of or usage of marijuana whatsoever, which is an immediate red flag”
and “an indicator to me that he was obviously lying.” Id. Officer Dienhart also
noticed that Moore’s hands were shaking and that he appeared very nervous
and pale. On cross examination, defense counsel asked when the drug
investigation commenced, and Dienhart responded, “as soon as I detect the
odor of marijuana.” Id. at 45.
[11] Officer Dienhart also testified that he has had training in recognizing both raw
and burnt marijuana. Id. at 24. He further stated that he can distinguish
between the two types and that in seven and one-half years he had taken part in
hundreds, if not thousands, of investigations that involved marijuana. Id. at 27.
Court of Appeals of Indiana | Opinion 22A-CR-1979 | May 26, 2023 Page 5 of 15 [12] These facts are sufficient to establish reasonable suspicion that criminal activity
was occurring. Before the traffic stop was completed, indeed as soon as it
began, Officer Dienhart smelled what he believed, in his training and
experience, to be the odor of marijuana. The officer was thus justified in his
brief detention of Moore for further investigation into the odor coming from the
car.
2. Probable Cause to Search the Car
[13] Moore next alleges that the officers did not have probable cause to search the
car. As a general rule, the Fourth Amendment prohibits warrantless searches,
but the rule is not without exceptions. Myers v. State, 839 N.E.2d 1146 (Ind.
2005). For instance, the automobile exception allows police to search a vehicle
without obtaining a warrant if they have probable cause to believe evidence of a
crime will be found there. State v. Hobbs, 933 N.E.2d 1281 (Ind. 2010). This
exception stems from an automobile’s ready mobility, in that the evidence may
disappear while a warrant is being obtained, and from citizens’ lower
expectations of privacy in their automobiles due to government regulation. Id.
Under this exception, the courts of this state have held that an officer’s
detection of the odor of marijuana from a vehicle provides probable cause to
search the vehicle. See Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013) (“the
smell of burnt marijuana emanating from [a person’s] car windows, to a trained
officer, would provide such an officer with probable cause sufficient to justify
searching at least the open interior of the car”); Bell v. State, 13 N.E.3d 543, 546
(Ind. Ct. App. 2014) (“like the smell of burnt marijuana, the smell of raw
Court of Appeals of Indiana | Opinion 22A-CR-1979 | May 26, 2023 Page 6 of 15 marijuana on a person is sufficient to provide probable cause that the person
possesses marijuana”), trans. denied.
[14] 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 1 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-9-
tetrahydrocannabinol concentration of not more than three-tenths of one
percent (0.3%)). And marijuana and hemp purportedly have indistinguishable
odors. See North Carolina State Bureau of Investigation, “Industrial
Hemp/CBD Issues,” available at
https://www.sog.unc.edu/sites/default/files/doc_warehouse/NC%20SBI%20
-%20Issues%20with%20Hemp%20and%20CBD%20Full.pdf
[https://perma.cc/DX25-455S] (last visited May 19, 2023).
[15] 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. See, e.g., Cynthia A.
1 “Delta-9-tetrahydrocannabinol (THC) is the primary psychoactive cannabinoid extracted from the cannabis (marijuana) plant.” https://www.ncbi.nlm.nih.gov/books/NBK563174/#:~:text=Go%20to%3A- ,Indications,the%20cannabis%20(marijuana)%20plant [https://perma.cc/F38Z-Z368] (last visited May 19, 2023).
Court of Appeals of Indiana | Opinion 22A-CR-1979 | May 26, 2023 Page 7 of 15 Sherwood et al., Even Dogs Can’t Smell the Difference: The Death of “Plain Smell”
as Hemp is Legalized, 55 Tenn. B.J. 14 (December 2019); see generally Brynn
Holland, The Hazy History of ‘420’ (updated April 20, 2022),
https://www.history.com/news/the-hazy-history-of-420
[https://perma.cc/CB4K-WN2U] (last visited May 19, 2023).
[16] 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).
[17] More recently in United States v. Garth, No. 3:20-CR-43-TAV-HBG, 2021 WL
8442271 (E.D. Tenn. July 6, 2021), report and recommendation adopted in part
by No. 3:20-CR-43-KAC-JEM, 2022 WL 1084740 (E.D. Tenn. Apr. 11, 2022), Court of Appeals of Indiana | Opinion 22A-CR-1979 | May 26, 2023 Page 8 of 15 the District Court for the Eastern District of Tennessee held that an officer had
probable cause to search a vehicle for drugs based upon the odor of raw
marijuana coming from the vehicle. The defendants argued that the odor of
marijuana did not provide probable cause to search the car because the odor of
marijuana cannot be distinguished from the odor of lawful substances, such as
hemp. Noting the officer testified he is familiar with the odor of marijuana, the
court applied the “fair probability” test set forth in Vaughn and held that the
officer’s detection of the odor at the window of the vehicle established a fair
probability that the car contained marijuana. Id. at *13. See also U.S. v. Nava,
No. 2:22-CR-20002-PKH-1, 2022 WL 3593724 (W.D. Ark. Aug. 1, 2022)
(where defendant contended that odor of marijuana alone no longer provides
probable cause to search vehicle because medical marijuana and industrial
hemp are legal in Arkansas, court disagreed and relied on Arkansas state
caselaw that, post-legalization, continued to hold that odor of marijuana
justifies vehicular search), report and recommendation adopted by No. 2:22-
CR-20002, 2022 WL 3589493 (W.D. Ark. Aug. 22, 2022).
[18] Similar rulings occurred in United States v. Holt, No. 3:21-CR-80 (MPS), 2021
WL 5281366 (D. Conn. Nov. 12, 2021) (discussing that, although there was
possibility odor may have emanated from hemp or non-criminally possessed
marijuana, it did not undermine reasonableness of officer’s suspicion that odor
was criminally-possessed marijuana in affirming denial of motion to suppress
and concluding police had probable cause to search vehicle based upon odor
and defendant’s statement of possessing “a blunt”) and United States v. Brooks,
Court of Appeals of Indiana | Opinion 22A-CR-1979 | May 26, 2023 Page 9 of 15 No. 319CR00211FDWDCK, 2021 WL 1668048 (W.D.N.C. Apr. 28, 2021)
(defendant cited North Carolina State Bureau of Investigation report seeming to
suggest that marijuana and hemp look and smell almost identical and argued
that because substances found in vehicle were not tested, evidence must be
suppressed; court denied suppression, stating that, even assuming hemp and
marijuana smell identical, presence of hemp does not render unreasonable all
police probable cause searches based on odor because, regardless of ever-
changing state marijuana legal landscape, marijuana remains illegal under
federal law and precedent of odor of marijuana giving law enforcement
probable cause to search has not been overturned).
[19] 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).
Court of Appeals of Indiana | Opinion 22A-CR-1979 | May 26, 2023 Page 10 of 15 [20] 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.
B. Indiana Constitution [21] Article 1, section 11 of the Indiana Constitution protects citizens from
unreasonable searches and seizures, and, although its text mirrors the Fourth
Amendment, we interpret it separately and independently. Robinson v. State, 5
N.E.3d 362 (Ind. 2014). When a section 11 claim is raised, the State must show
the police conduct was reasonable under the totality of the circumstances.
Farris v. State, 144 N.E.3d 814 (Ind. Ct. App. 2020) (quoting Robinson, 5 N.E.3d
at 368), trans. denied. A determination of the reasonableness of the conduct
turns on a balance of three factors: (1) the degree of concern, suspicion, or
knowledge that a violation has occurred; (2) the degree of intrusion the method
of the search or seizure imposes on the citizen’s ordinary activities; and (3) the
extent of law enforcement needs. Id.
[22] Here, as he has acknowledged, Moore was in clear violation of the law by
operating a vehicle with an expired license plate at the time Officer Dienhart
Court of Appeals of Indiana | Opinion 22A-CR-1979 | May 26, 2023 Page 11 of 15 stopped him. Immediately upon approaching the car to inquire about the issues
with the license plate, the officer smelled a very strong odor of marijuana. The
degree of suspicion of criminal activity increased exponentially upon this
observation, which justified Dienhart’s continued detention of Moore, as we
discussed above.
[23] The heart of this case, though, is whether the odor also justified the subsequent
search of the car. We note that since our state’s legalization of some cannabis-
derived substances, we have addressed issues concerning the similarity in the
odors of marijuana and hemp. See Alexander-Woods v. State, 163 N.E.3d 902
(Ind. Ct. App.) (where, following trial on charges arising from traffic stop and
vehicle search based on odor of marijuana, defendant challenged probable
cause for search on ground that State failed to prove officer was qualified to
distinguish between odors of illegal marijuana and legal hemp, Court’s review
of issue was precluded by waiver for failure to assert argument in trial court),
trans. denied, 168 N.E.3d 737 (Ind. 2021), and disapproved of by Bunnell v. State,
172 N.E.3d 1231 (Ind. 2021); Bunnell, 172 N.E.3d 1231 (determining issue of
first impression and holding that officer who affirms he or she detects odor of
raw marijuana based on training and experience may establish probable cause
without further details on his or her qualifications to recognize odor;
disapproving Alexander-Woods, 163 N.E.3d 902 because its holding suggested
that officer’s general statement of training and experience may not suffice for
probable cause determination); Fedij v. State, 186 N.E.3d 696 (Ind. Ct. App.
2022) (reversing defendant’s conviction for possession of marijuana due to
Court of Appeals of Indiana | Opinion 22A-CR-1979 | May 26, 2023 Page 12 of 15 State’s failure to prove seized substance was illegal marijuana, as opposed to
legal hemp, where officer testified at trial that she could not distinguish between
hemp and marijuana absent testing for concentration of THC and that she was
trained on the smell of burnt marijuana and not burnt hemp or any differences
that may exist between the two and analyst identified presence but not percent
concentration of THC in substance); Toledo Rojo v. State, 202 N.E.3d 1085 (Ind.
Ct. App.) (reversing a conviction based on insufficient evidence where an
officer testified that he knew the substance seized was marijuana due to markers
regarding sight and smell and holding this evidence insufficient to establish that
the substance was illegal marijuana with concentration of THC of 0.3% or more
as required to convict for possession of marijuana), trans. denied, 199 N.E.3d
787 (Ind. 2022).
[24] Still, this Court has not tackled the precise argument Moore presents here. The
argument is this: given the concept that illegal marijuana and legal hemp
cannot be distinguished by their smell due to the similarity of their odors, it can
no longer be said that marijuana has a “distinct smell” that indicates criminal
activity. We disagree.
[25] Marijuana is not the only substance whose legality cannot be detected by
human senses alone. For instance, innocuous substances such as talcum
powder, flour, and sugar have a white powdery appearance similar to cocaine.
But that does not mean that an untested white powder can never indicate
criminal activity. See, e.g., Lamagna v. State, 776 N.E.2d 955 (Ind. Ct. App.
2002) (ruling that police had probable cause to arrest defendant based solely on
Court of Appeals of Indiana | Opinion 22A-CR-1979 | May 26, 2023 Page 13 of 15 observations of his possession, transfer, and abandonment of packets of white
powder). Similarly, an officer’s discovery of unidentified pills may indicate
criminal activity, although some pills are not contraband because they either are
not controlled substances or because the person possessing them has a valid
prescription. See Strangeway v. State, 720 N.E.2d 724 (Ind. Ct. App. 1999)
(ruling that police officer had probable cause to arrest driver after passenger
exited car and officer saw on seat of vehicle a cellophane wrapper containing
white pills that he suspected were controlled substances); Ind. Code § 35-48-4-
6(a) (2014) (defining offense of possession of narcotic as requiring possession of
schedule I or II narcotic by a person “without a valid prescription or order of a
practitioner acting in the course of the practitioner’s professional practice”).
[26] It therefore is not convincing that the marijuana odor could be caused by legal
hemp. Although the legal landscape for cannabis-derived substances is ever-
changing, one thing remains true: some types of marijuana possession remain
illegal in Indiana. It follows then that the odor of marijuana reasonably may
indicate criminal activity. Therefore, in the consideration of the
constitutionality of a search based on the odor of marijuana, as the law stands
now it is of no moment that legal hemp smells similar to illegal marijuana
because law enforcement’s conduct must be reasonable under the circumstances
and such reasonableness does not require conclusive proof that a defendant
committed a crime. Thus, in this case the strong odor of marijuana detected by
Officer Dienhart as soon as he approached the car driven by Moore established
a high degree of suspicion of criminal activity.
Court of Appeals of Indiana | Opinion 22A-CR-1979 | May 26, 2023 Page 14 of 15 [27] 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.
Conclusion [28] 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.
[29] Affirmed.
Pyle, J., and Weissmann, J., concur.
Court of Appeals of Indiana | Opinion 22A-CR-1979 | May 26, 2023 Page 15 of 15