In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-23-00368-CR
LARRY DEAN THACKER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 33rd District Court Blanco County, Texas1 Trial Court No. CR02012, Honorable J. Allan Garrett, Presiding
July 12, 2024 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Larry Dean Thacker, Appellant, pleaded guilty to the felony offense of possession
of a controlled substance, namely methamphetamine.2 In this appeal, he contends that
the trial court erred in denying his motion to suppress evidence. We affirm.
1 This case is before the Court on transfer from the Third Court of Appeals pursuant to a docket
equalization order of the Supreme Court of Texas. TEX. GOV’T CODE ANN. § 73.001. 2 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c). BACKGROUND
Shortly after 3:00 a.m. on May 17, 2020, Blanco Police Department officer Ethan
Winn stopped Appellant’s vehicle for speeding. Officer Winn detected a strong odor of
marijuana emitting from the vehicle. He asked Appellant whether anyone had smoked
marijuana in the car recently and Appellant responded that it had “been a while,” probably
“about a week.” Officer Winn informed Appellant and his passenger that the odor of
marijuana gave him probable cause to conduct a search. Appellant initially told the officer
to “[g]o ahead” but then said that he did not have to allow the search. Officer Winn clarified
that he was not asking for Appellant’s consent to search, because he had probable cause
due to the smell of marijuana coming from the car. Appellant assured the officer that he
was not going to find anything illegal in the car.
Upon searching the vehicle, the officer found a used marijuana pipe and another
pipe with fresh marijuana. He also found 1.75 grams of methamphetamine in a plastic
container. Appellant acknowledged that he was a methamphetamine user and told the
officer that the methamphetamine was his.
Before trial, the parties stipulated that Officer Winn had reasonable suspicion to
stop Appellant’s vehicle and that he “smelled the odor of cannabis sativa L. prior to
conducting any search . . . .” They further stipulated that the officer’s probable cause to
search the vehicle “was based on the odor of cannabis sativa L. alone.” The parties also
agreed to enter into evidence, without objection, Officer Winn’s offense report and body
camera footage.
2 Appellant filed a motion to suppress evidence obtained by the police in connection
with the search of his vehicle on the grounds that the police lacked probable cause, a
search warrant, or other lawful authority to perform the search. The trial court denied
Appellant’s motion. Appellant subsequently pleaded guilty pursuant to a plea agreement,
retaining his right to appeal the denial of his motion to suppress.
ANALYSIS
In his sole issue on appeal, Appellant asserts that the trial court abused its
discretion when it overruled his motion to suppress evidence seized during the search of
his vehicle. We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review, reviewing fact findings for an abuse of discretion and reviewing
applications of law de novo. State v. Ruiz, 581 S.W.3d 782, 785 (Tex. Crim. App. 2019).
We will sustain the trial court’s application of the law if it is correct under any applicable
theory of the law and the record reasonably supports the ruling. Id.
The Fourth Amendment prohibits unreasonable searches and seizures by
government officials. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007).
Generally, a search conducted without a warrant is considered per se unreasonable. Id.
However, a warrantless search of a vehicle is reasonable if law enforcement officials have
probable cause to believe that the vehicle contains contraband. Id. “Probable cause
exists when, under the totality of the circumstances, there is a fair probability that
contraband or evidence of a crime will be found in a particular location.” State v. Baldwin,
664 S.W.3d 122, 130 (Tex. Crim. App. 2022).
3 Texas courts have held that the odor of contraband in a vehicle establishes
probable cause for a warrantless search of the vehicle. See Moulden v. State, 576
S.W.2d 817, 820 (Tex. Crim. App. [Panel Op.] 1978) (concluding police officers had
probable cause to search vehicle after detecting odor of marijuana); Stringer v. State, 605
S.W.3d 693, 697 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (same); Smith v. State,
No. 03-17-00079-CR, 2017 Tex. App. LEXIS 7254, at *7–9 (Tex. App.—Austin Aug. 3,
2017, pet. ref’d) (mem. op., not designated for publication) (and cases cited therein)
(same). But Appellant argues that, since the Texas Legislature has legalized some forms
of cannabis sativa, the odor of cannabis sativa can be consistent with lawful behavior.3
He contends that the odor emanating from his vehicle was just as likely to come from a
legal product, i.e., hemp, as it was to come from an illegal product, i.e., marijuana. Thus,
he concludes, the odor of cannabis sativa, standing alone, could not establish probable
cause to search his vehicle following the traffic stop.
In Cortez v. State, the Fifth Court of Appeals addressed the argument advanced
by Appellant. No. 05-21-00664-CR, 2022 Tex. App. LEXIS 9270, at *17–20 (Tex. App.—
Dallas Dec. 20, 2022, pet. ref’d) (mem. op., not designated for publication). The court
concluded that the odor of marijuana emanating from a vehicle gave an officer probable
cause to search the vehicle and its occupants, even though the odor of marijuana is
indistinguishable from the odor of hemp. Id. at *18–19. The court reiterated, “As
3 “[T]he Cannabis sativa L. plant and its parts and derivatives that historically were illegal . . . can
now be legally cultivated in Texas, so long as they contain a THC concentration of no more than 0.3 percent. Under the new statutory framework, all such parts of the Cannabis sativa L. plant now qualify as ‘hemp,’ and no longer qualify as ‘marihuana.’” Tex. Dep’t of State Health Servs. v. Crown Distrib. LLC, 647 S.W.3d 648, 662 (Tex. 2022). Legal hemp products and illegal marijuana products are “virtually indistinguishable by sight or smell alone.” Id.
4 marijuana possession is a crime, its odor may evidence criminal activity.” Id. at *18. It
concluded that “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.” Id. at
*20. The Fifth Court of Appeals later reaffirmed its position in Cortez in State v. Gonzales,
676 S.W.3d 261, 268–69 (Tex. App.—Dallas 2023, no pet.).
The Fourth Court of Appeals, in Isaac v. State, also considered whether the
legalization of hemp affects officers’ ability to rely on the odor of marijuana for purposes
of establishing probable cause. 675 S.W.3d 116, 118–20 (Tex. App.—San Antonio 2023,
no pet.). It observed, “Despite [the defendant’s] argument that industrial hemp is now
legal and indistinguishable from marijuana without a lab test, marijuana remains illegal,
and the probable cause standard for police to detect it remains the same . . . .” Id. at 119.
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-23-00368-CR
LARRY DEAN THACKER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 33rd District Court Blanco County, Texas1 Trial Court No. CR02012, Honorable J. Allan Garrett, Presiding
July 12, 2024 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Larry Dean Thacker, Appellant, pleaded guilty to the felony offense of possession
of a controlled substance, namely methamphetamine.2 In this appeal, he contends that
the trial court erred in denying his motion to suppress evidence. We affirm.
1 This case is before the Court on transfer from the Third Court of Appeals pursuant to a docket
equalization order of the Supreme Court of Texas. TEX. GOV’T CODE ANN. § 73.001. 2 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c). BACKGROUND
Shortly after 3:00 a.m. on May 17, 2020, Blanco Police Department officer Ethan
Winn stopped Appellant’s vehicle for speeding. Officer Winn detected a strong odor of
marijuana emitting from the vehicle. He asked Appellant whether anyone had smoked
marijuana in the car recently and Appellant responded that it had “been a while,” probably
“about a week.” Officer Winn informed Appellant and his passenger that the odor of
marijuana gave him probable cause to conduct a search. Appellant initially told the officer
to “[g]o ahead” but then said that he did not have to allow the search. Officer Winn clarified
that he was not asking for Appellant’s consent to search, because he had probable cause
due to the smell of marijuana coming from the car. Appellant assured the officer that he
was not going to find anything illegal in the car.
Upon searching the vehicle, the officer found a used marijuana pipe and another
pipe with fresh marijuana. He also found 1.75 grams of methamphetamine in a plastic
container. Appellant acknowledged that he was a methamphetamine user and told the
officer that the methamphetamine was his.
Before trial, the parties stipulated that Officer Winn had reasonable suspicion to
stop Appellant’s vehicle and that he “smelled the odor of cannabis sativa L. prior to
conducting any search . . . .” They further stipulated that the officer’s probable cause to
search the vehicle “was based on the odor of cannabis sativa L. alone.” The parties also
agreed to enter into evidence, without objection, Officer Winn’s offense report and body
camera footage.
2 Appellant filed a motion to suppress evidence obtained by the police in connection
with the search of his vehicle on the grounds that the police lacked probable cause, a
search warrant, or other lawful authority to perform the search. The trial court denied
Appellant’s motion. Appellant subsequently pleaded guilty pursuant to a plea agreement,
retaining his right to appeal the denial of his motion to suppress.
ANALYSIS
In his sole issue on appeal, Appellant asserts that the trial court abused its
discretion when it overruled his motion to suppress evidence seized during the search of
his vehicle. We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review, reviewing fact findings for an abuse of discretion and reviewing
applications of law de novo. State v. Ruiz, 581 S.W.3d 782, 785 (Tex. Crim. App. 2019).
We will sustain the trial court’s application of the law if it is correct under any applicable
theory of the law and the record reasonably supports the ruling. Id.
The Fourth Amendment prohibits unreasonable searches and seizures by
government officials. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007).
Generally, a search conducted without a warrant is considered per se unreasonable. Id.
However, a warrantless search of a vehicle is reasonable if law enforcement officials have
probable cause to believe that the vehicle contains contraband. Id. “Probable cause
exists when, under the totality of the circumstances, there is a fair probability that
contraband or evidence of a crime will be found in a particular location.” State v. Baldwin,
664 S.W.3d 122, 130 (Tex. Crim. App. 2022).
3 Texas courts have held that the odor of contraband in a vehicle establishes
probable cause for a warrantless search of the vehicle. See Moulden v. State, 576
S.W.2d 817, 820 (Tex. Crim. App. [Panel Op.] 1978) (concluding police officers had
probable cause to search vehicle after detecting odor of marijuana); Stringer v. State, 605
S.W.3d 693, 697 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (same); Smith v. State,
No. 03-17-00079-CR, 2017 Tex. App. LEXIS 7254, at *7–9 (Tex. App.—Austin Aug. 3,
2017, pet. ref’d) (mem. op., not designated for publication) (and cases cited therein)
(same). But Appellant argues that, since the Texas Legislature has legalized some forms
of cannabis sativa, the odor of cannabis sativa can be consistent with lawful behavior.3
He contends that the odor emanating from his vehicle was just as likely to come from a
legal product, i.e., hemp, as it was to come from an illegal product, i.e., marijuana. Thus,
he concludes, the odor of cannabis sativa, standing alone, could not establish probable
cause to search his vehicle following the traffic stop.
In Cortez v. State, the Fifth Court of Appeals addressed the argument advanced
by Appellant. No. 05-21-00664-CR, 2022 Tex. App. LEXIS 9270, at *17–20 (Tex. App.—
Dallas Dec. 20, 2022, pet. ref’d) (mem. op., not designated for publication). The court
concluded that the odor of marijuana emanating from a vehicle gave an officer probable
cause to search the vehicle and its occupants, even though the odor of marijuana is
indistinguishable from the odor of hemp. Id. at *18–19. The court reiterated, “As
3 “[T]he Cannabis sativa L. plant and its parts and derivatives that historically were illegal . . . can
now be legally cultivated in Texas, so long as they contain a THC concentration of no more than 0.3 percent. Under the new statutory framework, all such parts of the Cannabis sativa L. plant now qualify as ‘hemp,’ and no longer qualify as ‘marihuana.’” Tex. Dep’t of State Health Servs. v. Crown Distrib. LLC, 647 S.W.3d 648, 662 (Tex. 2022). Legal hemp products and illegal marijuana products are “virtually indistinguishable by sight or smell alone.” Id.
4 marijuana possession is a crime, its odor may evidence criminal activity.” Id. at *18. It
concluded that “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.” Id. at
*20. The Fifth Court of Appeals later reaffirmed its position in Cortez in State v. Gonzales,
676 S.W.3d 261, 268–69 (Tex. App.—Dallas 2023, no pet.).
The Fourth Court of Appeals, in Isaac v. State, also considered whether the
legalization of hemp affects officers’ ability to rely on the odor of marijuana for purposes
of establishing probable cause. 675 S.W.3d 116, 118–20 (Tex. App.—San Antonio 2023,
no pet.). It observed, “Despite [the defendant’s] argument that industrial hemp is now
legal and indistinguishable from marijuana without a lab test, marijuana remains illegal,
and the probable cause standard for police to detect it remains the same . . . .” Id. at 119.
The court concluded that it was appropriate for officers to rely on the odor of marijuana to
establish probable cause to search, as the odor “can at least be part of the totality of the
evidence supporting probable cause to investigate.” Id. at 119. Appellant argues that the
decision in Isaac “is consistent with the ‘odor plus’ standard,” but Isaac did not address
whether odor alone could establish probable cause.
The Twelfth Court of Appeals reached the same conclusion in Moffitt v. State, Nos.
12-23-00090-CR, 12-23-000108-CR, 12-23-00109-CR, 2023 Tex. App. LEXIS 7758, at
*13–14 (Tex. App.—Tyler Oct. 11, 2023, no pet.) (mem. op., not designated for
publication). It affirmed the principle that “when . . . an officer smells the odor of marijuana
emanating from a vehicle, the odor provides probable cause to search the vehicle and its
occupants, regardless of whether the substance in question might be hemp.” Id. at *13. 5 We agree with the conclusion reached by our sister courts. The probable cause
standard does not demand certainty; it is met so long as there is a “fair probability” that
evidence of criminal activity will be found. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct.
2317, 76 L. Ed. 2d 527 (1983). Even though the odor of marijuana is not inevitably tied
to criminal activity, probable cause does not require an officer to draw an inference of
innocent behavior rather than an inference of unlawful behavior. See Texas v. Brown,
460 U.S. 730, 742, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) (probable cause “does not
demand any showing that [the belief that an offense was committed] be correct or more
likely true than false. A ‘practical, nontechnical’ probability that incriminating evidence is
involved is all that is required.”); see also United States v. Garcia, 179 F.3d 265, 269 (5th
Cir. 1999) (“[T]he requisite ‘fair probability’ is something more than a bare suspicion, but
need not reach the fifty percent mark.”). The odor of cannabis sativa remains the odor of
marijuana, the possession of which remains a criminal offense. See TEX. HEALTH &
SAFETY CODE ANN. § 481.121(a). Additionally, we note that the provisions of the Texas
Hemp Farming Act reveal that the Legislature did not intend for the legalization of hemp
to impede the enforcement of laws regulating marijuana. See TEX. AGRIC. CODE ANN.
§ 122.358(d) (“This subchapter does not limit or restrict a peace officer from enforcing to
the fullest extent the laws of this state regulating marihuana and controlled substances,
as defined by Section 481.002, Health and Safety Code.”).
In this case, the odor of cannabis sativa L. detected by Officer Winn indicated the
possibility of criminal activity, giving him probable cause to search the vehicle. We further
note that the trial court had before it Officer Winn’s offense report and body camera video,
6 which were entered into evidence without objection.4 The evidence reflected Appellant’s
admission that marijuana had been smoked in his vehicle recently, that the odor
emanating from his vehicle was strong, and that the officer detected the odor immediately
upon approaching the vehicle. This contextual evidence is relevant to whether the odor
emanating from Appellant’s car came from a legal or an illegal substance. We conclude
that the trial court did not err in denying Appellant’s motion to suppress.
CONCLUSION
Finding no error in the trial court’s decision, we affirm the judgment of the trial court.
Judy C. Parker Justice
Do not publish.
4 It is clear from the language of the stipulation that the parties intended for the trial court to
determine whether the odor of cannabis sativa L. gave Officer Winn probable cause to search Appellant’s vehicle without considering any other facts indicative of criminal activity. However, it is also apparent from the stipulation that the parties intended for the trial court to consider the exhibits in evidence in ruling on Appellant’s motion, and that the stipulation was not a complete and exhaustive recitation of all the facts and circumstances relevant to the trial court’s ruling.