Both the Indiana and Federal Constitutions prohibit searches conducted without a warrant, unless they fall under an exception to the warrant requirement. One such exception, the automobile exception, allows for the warrantless search of a vehicle when a police officer has probable cause to believe the vehicle contains contraband or other evidence of a crime.

For years Indiana’s Court of Appeals has held the odor of raw or burnt marijuana can establish probable cause to support the warrantless search of a vehicle. This was due largely to the fact that marijuana and plants similar to marijuana have a distinct and apparent odor easily detected by police officers.

Prior to 2014, this did not pose a serious problem. But in 2014 Indiana made it legal to grow hemp for industrial purposes. And recently it became permissible to transport smokable hemp through Indiana, the Crossroads of America.

Hemp products are difficult to distinguish from marijuana products based on odor alone. The State of Indiana has acknowledged this and admitted that police officers cannot discern the difference between the odor of an illegal marijuana product and a legal hemp product.

The cases decided by the Court of Appeals on the odor of marijuana alone establishing probable cause for a warrantless search of a vehicle were all decided before the legalization of hemp, when all the products that smelled exactly like marijuana were illegal. Now, the incriminating nature of the odor is no longer immediately apparent to law enforcement.

This argument was made in Alexander-Woods v. State, which was decided today by the Court of Appeals in a published opinion. The Court held that, unfortunately, the issue was not preserved for appeal, so it would only lead to reversal of the convictions if it rose to the level of fundamental error. The Court concluded it did not. Still, this issue will certainly be revisited, given the patchwork of laws surrounding the growing legalization of marijuana and marijuana-like products.