Austin Lawyer, June 2022

austinbar.org JUNE 2022 | VOLUME 31, NUMBER 5

What’s in a Name? That Which We Call Weed By Any Other Name Would Smell As Sweet BY RICK COFER AND MEGAN RUE

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riminal defense attorneys dread one infamous line in an offense report: “I detected what I know through my training and experience to be the odor of marijuana.” This one sentence has stymied innumerable motions to suppress. Prior to 2018, Texas courts consistently held that the odor of marijuana alone provided reasonable suspicion to conduct an investigative detention1 and provided probable cause for a warrantless search of a vehicle2 or its occupants3 during a traffic stop. Two recent pieces of legislation have radically altered the cannabis regulatory framework. For criminal defense practitioners, understanding these regulatory changes is critical to advancing the novel legal challenges to push back on “odor of marijuana” traffic stops and detentions. REGULATORY CHANGES The federal “Farm Bill,”4 signed in 2018, and the Texas “Hemp Bill,”5 signed in 2019, both altered the definition of cannabis, a type of flowering plant in the Cannabaceae family.6 Prior

to the passage of the Farm Bill, all cannabis plants were generally considered illegal substances under the federal Controlled Substances Act.7 The Hemp Bill amended the definition of “marihuana” in the Texas Health and Safety Code to exclude “hemp.”8 Hemp is defined as cannabis with a THC concentration at or below .3%.9 The possession of any usable quantity of marijuana—now defined as cannabis with a THC concentration higher than .3%--remains a criminal offense.10,11 Possession of hemp is not. What might at first glance read like a trivial definitional change has significant ramifications for criminal defense attorneys and our clients. “Hemp” and “marijuana” are functionally made-up labels for different uses of the same plant. They are differentiated legally only by THC concentration. Determining the THC concentration of either substance requires lab testing. It is impossible to distinguish hemp from marijuana by human sight or by odor alone.12 More on this below, but dogs can’t smell the difference either.

“Hemp” and “marijuana” are functionally made-up labels for different uses of the same plant. They are differentiated legally only by THC concentration. Determining the THC concentration of either substance requires lab testing. It is impossible to distinguish hemp from marijuana by human sight or by odor alone. As a result of the reforms to cannabis law, criminal defendants nationwide have begun challenging the “odor of marijuana” as a standalone basis for a reasonable suspicion or probable cause finding. Following passage of the Farm Bill and Hemp Bill, Texas courts have yet to clarify whether

the “odor of marijuana” alone still provides reasonable suspicion or probable cause. THIS IS JUST BEGINNING IN TEXAS The issue has been raised recently in at least one Texas Court of continued on page 5