REVERSE AND REMAND and Opinion Filed October 12, 2023
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01154-CR No. 05-22-01155-CR STATE OF TEXAS, Appellant V. CHRISTIAN BRUCE GONZALES, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause Nos. 416-82430-2022 & 416-81431-2022
OPINION Before Justices Carlyle, Smith, and Kennedy Opinion by Justice Kennedy The State appeals the trial court’s orders granting Christian Bruce Gonzales’s
motions to suppress evidence seized without a warrant. The State contends the trial
court erred in concluding Allen Police Department officers did not have probable
cause to conduct the warrantless search. We reverse the trial court’s orders granting
Gonzales’s motions to suppress and remand the cases for further proceedings. BACKGROUND
On December 5, 2021, at approximately 9:20 p.m., Allen Police Department
Officers Richard Caldwell and Joshua Robbins were on patrol in separate vehicles.
The officers were sitting in their parked vehicles conversing with each other through
open windows when a pickup truck drove past them. As the truck passed by, both
officers detected the strong odor of marijuana emanating from it. The odor
dissipated as the truck drove away. The officers followed the truck to a nearby gas
station. When they arrived, the truck was parked at a gas pump. The driver and
front-seat passenger were still in the vehicle and the back-seat passengers, Gonzales
and his girlfriend, had exited the vehicle and were walking into the gas station’s
convenience store. Officer Robbins followed Gonzales and his girlfriend into the
store and ordered them to return to the truck. In the meantime, Officer Caldwell
approached the truck as the driver and the front-seat passenger exited the vehicle.
As he did so, he immediately detected a strong odor of marijuana. When Officer
Robbins returned to the truck with Gonzales and his girlfriend, he also detected the
odor of marijuana. Based on the odor, Officer Robbins searched the truck and, in
doing so, he found a green leafy plant in the backseat’s right-door pocket. He
believed the substance was marijuana. He also found a polymer 80 handgun in the
map pocket behind the front passenger seat. At some point during the encounter,
Gonzales told the officers he had been sitting in the backseat on the right side.
Officer Robbins then arrested Gonzales for unlawful possession and carrying of a
–2– firearm. During a search incident to the arrest, Officer Robbins found marijuana on
Gonzales’s person.
A grand jury indicted Gonzales for the third-degree felony offense of unlawful
possession of a firearm by a felon and the second-degree felony offense of unlawful
carrying of a weapon with a felony conviction. TEX. PENAL CODE ANN. §§ 46.04(e),
46.02(e)(1). Gonzales filed motions seeking to suppress evidence asserting the
officers lacked probable cause to conduct the warrantless search of the truck.
The trial court held a hearing on Gonzales’s motions to suppress. At the
hearing, the State called Officers Caldwell and Robbins to testify. Gonzales did not
testify or call any witnesses. The officers indicated they conducted the warrantless
search based upon the odor of marijuana. Both officers established that they were
trained and experienced in detecting the odor of marijuana. They acknowledged that
they could not tell whether the substance they smelled was marijuana or hemp
without a lab test to differentiate the tetrahydrocannabinol (THC) concentration of
the substance.1 Gonzales challenged whether police officers could still rely on their
training and experience and senses of sight and smell to establish probable cause for
marijuana possession, as a basis to conduct a warrantless search, since hemp, which
comes from the same plant as marijuana, has become legal and can be easily
confused for marijuana. He urged there was insufficient probable cause to support
1 Marijuana and hemp come from the same plant, Cannabis sativa L. –3– a lawful search of the truck during which the officers discovered the firearm that led
to the charges against him in the unlawful possession and carrying cases.
The trial court entered orders granting Gonzales’s motions to suppress and
issued the following findings of fact:
1. On December 5, 2021 at 9:00 p.m., Allen Police Officers Richard Caldwell and Joshua Robbins were on patrol duty in the city of Allen, Collin County, Texas. Both officers are certified police officers and have training and experience in the detection of illegal drugs.
2. While parked in an empty parking lot at 840 W. Stacy Road, both officers observed a moving vehicle drive by them from approximately 30-50 feet away. Both officers testified they smelled what they believed to be the odor of marijuana emanating from the vehicle.
3. Both officers began following the vehicle in their separate patrol vehicles. Officer Robbins followed directly behind the vehicle and testified he detected the same odor while he and Defendants [sic] vehicles [sic] were still in transit.
4. The vehicle pulled into a nearby gas station. Both officers parked near the vehicle and began an encounter with the vehicle’s four occupants, including the defendant. Both officers testified they detected the same odor of what they believed to be marijuana while next to the vehicle.
5. The officers testified there were no other factors of criminality present, and [they] had no reason to perform a traffic stop.
6. Based on his belief the odor of marijuana was emanating from the vehicle, Officer Robbins performed a warrantless search of the vehicle. He found a polymer SS80 firearm with no serial number and approximately 0.8 ounces of a substance he believed to be marijuana. These objects were found in close proximity to the seat the Defendant was understood to have been seated in.
7. While searching the Defendant’s person, Officer Robbins found what the Defendant admitted to be marijuana in his sock.
8. The Defendant was then placed under arrest for Unlawful Possession of a Firearm by a Felon, Unlawful Carrying of a Weapons with a Felony –4– Conviction, and Possession of Marijuana.
9. Both officers testified that they are unable to discern the difference between the odor of marijuana and the odor of hemp and a lab test was required to differentiate the THC concentration of either substance.
In addition, the trial court issued the following conclusions of law:
1. The encounter occurred in Collin County, State of Texas.
2. An officer has probable cause to perform a warrantless search if reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found. Courts have previously held that the odor of marijuana is sufficient probable cause for a peace officer to perform a warrantless search of the vehicle from which the odor came.
3. These holdings were abrogated by Texas House Bill 1325, signed into law June 2019, which changed the definition of “marihuana” and excluded “hemp.”
4. Based on the testimony and evidence admitted at the hearing, the court finds Officer Joshua Robbins did not have probable cause to perform a warrantless search of the vehicle.
This appeal followed. See TEX. CODE CRIM. PROC. ANN. art. 44.01(5) (State entitled
to appeal an order of a court in a criminal case if the order grants a motion to
suppress evidence, a confession, or an admission, if jeopardy has not attached in
the case and if the prosecuting attorney certifies to the trial court that the appeal is
not taken for purpose of delay and that the evidence, confession, or admission is of
substantial importance in the case).2
2 The State made the required certifications in both of the cases. –5– DISCUSSION
I. Standard of Review
In reviewing a trial court’s ruling on a motion to suppress, an appellate court
applies a bifurcated standard of review. See State v. Hardin, 664 S.W.3d 867, 871
(Tex. Crim. App. 2022). An appellate court gives almost total deference to the trial
court’s determination of historical facts. See id. Likewise, an appellate court affords
almost total deference to a trial court’s ruling on mixed questions of law and fact if
the resolution to those questions turns on the evaluation of credibility and demeanor.
See id. at 872. And an appellate court reviews the trial court’s legal ruling on a
motion to suppress de novo, unless its specific fact findings that are supported by
the record are also dispositive of the legal ruling. See Abney v. State, 394 S.W.3d
542, 548 (Tex. Crim. App. 2013). Here, the State challenges the trial court’s
conclusion of law with respect to the effect of the legislature’s enactment of the
Texas Hemp Farming Act and its impact on probable cause and warrantless searches.
Thus, our review of the issue presented is de novo.
II. Warrantless Searches and Probable Cause
The Fourth Amendment protects against unreasonable searches and seizures
conducted by governmental officials. U.S. CONST. amend. IV; Wiede v. State, 214
S.W.3d 17, 24 (Tex. Crim. App. 2007). Generally, a warrantless search is per se
unreasonable unless it falls within one of the few specifically defined and well
established exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412
–6– U.S. 218, 219 (1973); McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).
One exception to the warrant requirement is the automobile exception. See
Marcopoulos v. State, 538 S.W.3d 596, 599 (Tex. Crim. App. 2017). The
automobile exception allows police officers to conduct a warrantless search of an
automobile if the vehicle is readily mobile and the officer has probable cause to
believe that the vehicle contains contraband. Id. The two justifications for the
automobile exception are the automobile’s ready mobility and the lower expectation
of privacy in an automobile because it is subject to government regulation. See
Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009). Unlike warrantless
searches of residences, the automobile exception does not require exigent
circumstances. Neal v. State, 256 S.W.3d 264, 283 (Tex. Crim. App. 2008).
Accordingly, an officer may search a vehicle on the basis of probable cause to
believe that it contains contraband, although exigent circumstances do not exist.
Dixon v. State, 206 S.W.3d 613, 619 n.25 (Tex. Crim. App. 2006) (“[A] finding of
probable cause ‘alone satisfies the automobile exception to the Fourth Amendment
warrant requirement.’”) (citation omitted).
Probable cause does not deal with hard certainties, but with probabilities.
Moreno v. State, 415 S.W.3d 284, 288 (Tex. Crim. App. 2013). For probable cause
to exist, there must be a fair probability of finding inculpatory evidence at the
location being searched. Marcopoulos, 538 S.W.3d at 600. Probable cause is not a
high bar. Dist. of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018). It requires more
–7– than bare suspicion but less than would justify conviction. Amador v. State, 275
S.W.3d 872, 878 (Tex. Crim. App. 2009).
III. Basis for Search – Odor of Marijuana
The officers testified, and the trial court found, the basis for their search of the
vehicle in which Gonzales was a passenger was their detection of the odor of
marijuana. Courts have long held that the odor of marijuana alone is sufficient to
constitute probable cause to search a defendant’s person, vehicle, and objects within
the vehicle. See, e.g., Moulden v. State, 576 S.W.2d 817, 819–20 (Tex. Crim. App.
1978); Deleon v. State, 530 S.W.3d 207, 211 (Tex. App.—Eastland 2017, pet. ref’d);
Bogan v. State, No. 02–15–00354–CR, 2016 WL 1163725, at *2–3 (Tex. App.—
Fort Worth Mar. 24, 2016, pet. ref’d) (mem. op., not designated for
publication); Harris v. State, 468 S.W.3d 248, 255 (Tex. App.—Texarkana 2015, no
pet.); Rocha v. State, 464 S.W.3d 410, 418 (Tex. App.—Houston [1st Dist.] 2015,
pet. ref’d); Jordan v. State, 394 S.W.3d 58, 64–65 (Tex. App.—Houston [1st Dist.]
2012, pet. ref’d). The issue presented here is whether the trial court erred in
concluding the Texas Hemp Farming Act eradicated this line of cases. The State
urges the Texas Hemp Farming Act did not eradicate these cases and that the trial
court erred in concluding it did. Before we determine whether the trial court erred
in reaching its conclusion, we briefly discuss the adoption and effect of the Texas
Hemp Farming Act.
–8– IV. Texas Hemp Farming Act
The federal Agricultural Improvement Act of 2018 (2018 Farm Bill) classified
“hemp” as an agricultural product and generally authorized each state to decide
whether and how to regulate it within the state’s borders. Tex. Dep’t of State Health
Servs. v. Crown Distrib. LLC, 647 S.W.3d 648, 650 (Tex. 2022). Although
“marijuana” remains a Schedule 1 substance under the federal Controlled Substances
Act, the 2018 Farm Bill excludes “hemp” and hemp products that are cultivated,
produced, manufactured, and sold in compliance with federal regulations and the
relevant state’s federally approved plan. Id.
In 2019, the Texas Legislature adopted a hemp plan, commonly referred to as
the Texas Hemp Farming Act. See Act of May 22, 2019, 86th Leg., R.S., ch. 764,
2019 Tex. Gen. Laws 2085. In doing so, the legislature enacted Chapters 121 and
122 of the Texas Agriculture Code, generally permitting and regulating the
cultivation and handling of hemp within this state.3 See TEX. AGRIC. CODE ANN.
§§ 121.001–122.404; see also Crown Distrib., 647 S.W.3d at 650. But the Texas
Hemp Farming Act expressly prohibits the manufacturing of products containing
hemp for smoking. AGRIC. § 122.301(b); Crown Distrib., 647 S.W.3d at 651. And
Chapter 443 of the Health and Safety Code requires the commissioner’s rules to
reflect the principle that the processing or manufacturing of a consumable hemp
3 Hemp is the plant Cannabis sativa L. with a delta-9 THC of not more than 0.3 percent on a dry weight basis. AGRIC. § 121.001. –9– product for smoking is prohibited. TEX. HEALTH & SAFETY CODE ANN.
§ 443.204(4). Based on this mandate, the commissioner adopted rule 300.104,
which prohibits the manufacturing and processing of consumable hemp products for
smoking. See 25 TEX. ADMIN. CODE § 300.104; Crown Distrib., 647 S.W.3d at 651.4
The Texas Legislature also amended the Health and Safety Code to remove hemp
from the definition of marijuana. HEALTH & SAFETY § 481.002(26)(F); Smith v.
State, 620 S.W.3d 445, 448–49 (Tex. App.—Dallas 2020, no pet.).
V. Analysis
The State contends that the trial court erred in granting Gonzales’s
suppression motions because the court’s conclusions of law and ruling directly
conflict with (1) this Court’s decision in Cortez v. State, (2) the legislative intent
that law enforcement continue to enforce the marijuana laws after the enactment
of the Texas Hemp Farming Act, and (3) the well-settled Fourth Amendment
probable cause standard. The State aptly notes that when the trial court reached
its conclusion the Texas Hemp Farming Act eradicated the line of cases holding
that the odor of marijuana alone establishes probable cause to support a warrantless
search of a vehicle and its occupants, it did not have the benefit of this Court’s
4 The hemp companies in the Crown Distribution case sought an injunction prohibiting the enforcement of Section 443.204(4) and rule 300.104. The trial court granted a temporary injunction against enforcement of the rule but not against Section 443.204(4). The court of appeals affirmed the temporary injunction against enforcement of the rule’s prohibition of the distribution and retail sale of smokable hemp products. Tex. Dep’t of State Health Servs. v. Crown Distrib. LLC, No. 03-20-00463-CV, 2021 WL 3411551, at *8 (Tex. App.—Austin Aug. 9, 2021, no pet.) (mem. op.). The status or the effect of that injunction is not germane to our resolution of the State’s issue here. –10– decision in Cortez v. State, in which we affirmed the validity of the line of cases
holding that the odor of marijuana alone is sufficient to constitute probable cause
to search a defendant’s person, vehicle, and objects within the vehicle, after the
enactment of the Texas Hemp Farming Act. See Cortez v. State, No. 05-21-00664-
CR, 2022 WL 17817963, at *6–8 (Tex. App.—Dallas Dec. 20, 2022, pet. ref’d)
(mem. op., not designated for publication).
Cortez, like Gonzales, argued that because it is impossible to distinguish
marijuana from hemp by smell, the odor of Cannabis sativa L. alone is insufficient
to establish probable cause to permit a warrantless search. The trial court and this
Court rejected that argument. In doing so, this Court stated:
The “touchstone” of the [F]ourth [A]mendment, of course, is “reasonableness.” Heien v. North Carolina, 574 U.S. 54, 60 (2014). “To be reasonable,” however, “is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law in the community’s protection.’” Id. at 60-61. An error of fact or law, if reasonable, will not render the officer’s judgment on the scene as invariably unreasonable. Id. at 61-68. Thus, if an officer, while conducting an otherwise permissible inventory search of a vehicle comes across bales of white powder wrapped tightly in plastic and duct tape, determines on the scene that seizure and arrest appear appropriate, the decision is not retroactively rendered “unreasonable” because later laboratory testing reveals the substance to be something other than cocaine. Were it otherwise, our drug laws would become practically unenforceable.
Id. at *7. Further, in addressing Cortez’s argument that, because marijuana and
hemp come from the same plant, it is impossible to distinguish between the two by
smell and, therefore, the possibility of error was invariably present and, thus, the
–11– odor of Cannabis sativa L. is insufficient by itself to establish probable cause to
search, we stated:
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.
Id. We then concluded that 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,
and the trial court did not err when it concluded there was probable cause to support
the officer’s warrantless search of Cortez’s vehicle based on the officer’s belief that
he smelled Cannabis sativa L. Id. at *7–8.
In addition to this Court, several courts throughout the United States, in
jurisdictions where hemp is legal and marijuana remains illegal, have arrived at
the conclusion that officers may still rely on the odor of marijuana to establish
probable cause to investigate marijuana possession. See, e.g., State v. Moore, 408
Wis. 2d 16, 991 N.W.2d 412, 417 (2023); Moore v. State, 211 N.E.3d 574, 579–
81 (Ind. Ct. App. 2023) (first citing United States v. Vaughn, 429 F. Supp. 3d 499
(E.D. Tenn. 2019); and then citing United States v. Boggess, 444 F. Supp. 3d 730,
737 (S.D.W. Va. 2020)); State v. Teague, 286 N.C. App. 160, 879 S.E.2d 881, 896
(2022); State v. Tillman, 203 N.E.3d 71, 77 (Ohio Ct. App. 2022) (citing State v.
Withrow, ––– Ohio App. –––, 194 N.E.3d 804, 810–11 (2022)); Owens v. State,
317 So. 3d 1218, 1220 (Fla. Dist. Ct. App. 2021).
–12– Moreover, our decision in Cortez is supported by the plain language of the
Texas Hemp Farming Act, which indicates that the legislature did not intend to
infringe on the enforcement of laws regulating marijuana and the probable cause
standard. See AGRIC. § 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.”); see also Ryan Golden, Dazed & Confused; The State of
Enforcement of Marijuana Offenses After the Texas Hemp Farming Act, 72
BAYLOR L. REV. 737, 753–54 (2020) (“These provisions [§§ 122.356(b) and
122.358] evidence the legislature’s clear intent that law enforcement continue to
enforce Texas law by searching, and if necessary, seizing suspected illegal
substances, including marijuana.”).
Notwithstanding the fact that industrial hemp is now legal and may be
indistinguishable from marijuana without a lab test, marijuana remains illegal, and
the probable cause standard for police to detect it remains the same: “Probable cause
‘exists when reasonably trustworthy facts and circumstances within the knowledge
of the officer on the scene would lead a man of reasonable prudence to believe that
the instrumentality of a crime or evidence pertaining to a crime will be
found.’” Hyland v. State, 574 S.W.3d 904, 910 (Tex. Crim. App.
2019) (citing Washington v. State, 660 S.W.2d 533, 535 (Tex. Crim. App. 1983)).
Officers are not required to be absolutely certain or have actual confirmation that a
–13– substance they believe to be marijuana is marijuana and not hemp. See Lewis v.
State, No. 01-09-00530-CR, 2010 WL 3450246, at *3 (Tex. App.—Houston [1st
Dist.] Aug. 31, 2010, no pet.) (mem. op., not designated for publication) (“[T]he
U.S. Supreme Court has held that an officer need not have actual confirmation of the
illegality of a substance in order to have probable cause.”) (citing Tex. v. Brown, 460
U.S. 730, 741–42 (1983)). As stated supra, probable cause does not deal with hard
certainties, but with probabilities. See Moreno, 415 S.W.3d at 288. Probable cause
merely requires that the facts available to the officer would warrant a person 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.
Brown, 460 U.S. at 742.
Officers Caldwell and Robbins testified regarding their training and
experience detecting the odor of marijuana. Officer Caldwell testified that he had
come into contact with marijuana on a “pretty regular basis” but that he had never
seen anyone smoking hemp out in public and that, as far as he had seen, hemp is
not regularly smoked out in public. Officer Robbins testified similarly. Officers
Caldwell and Robbins both indicated that they smelled a strong odor of marijuana
emanating from the truck in which Gonzalez was a passenger. As marijuana
possession is a crime, its odor may evidence criminal activity. HEALTH & SAFETY
§ 481.121 (a person commits an offense if the person knowingly or intentionally
possesses a usable quantity of marijuana); see also Cortez, 2022 WL 17817963, at
–14– *7; Stringer v. State, 605 S.W.3d 693, 697 (Tex. App.—Houston [1st Dist.] 2020,
no pet.). We conclude the odor of Cannabis sativa L. emanating from the vehicle
in which Gonzales was an occupant gave the officers probable cause to search the
vehicle as well as its occupants. Cortez, 2022 WL 17817863, at *8; Stringer, 605
S.W.3d at 697. Thus, the trial court erred in concluding Officer Robbins did not
have probable cause to perform a warrantless search of the vehicle. We sustain the
State’s sole issue.
CONCLUSION
We reverse the trial court orders granting Gonzales’s motions to suppress and
remand the cases for further proceedings.
/Nancy Kennedy/ NANCY KENNEDY Publish JUSTICE Tex. R. App. P. 47
221154F.P05
–15– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
THE STATE OF TEXAS, Appellant On Appeal from the 416th Judicial District Court, Collin County, Texas No. 05-22-01154-CR V. Trial Court Cause No. 416-81430- 2022. CHRISTIAN BRUCE GONZALES, Opinion delivered by Justice Appellee Kennedy. Justices Carlyle and Smith participating.
Based on the Court’s opinion of this date, the trial court’s October 12, 2022 order granting appellee’s motion to suppress is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.
Judgment entered this 12th day of October, 2023.
–16– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
THE STATE OF TEXAS, Appellant On Appeal from the 416th Judicial District Court, Collin County, Texas No. 05-22-01155-CR V. Trial Court Cause No. 416-81431- 2022. CHRISTIAN BRUCE GONZALES, Opinion delivered by Justice Appellee Kennedy. Justices Carlyle and Smith participating.
Based on the Court’s opinion of this date, the trial court’s October 12, 2022 order granting appellee’s motion to suppress is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.
–17–