IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 8, 2022 Session

STATE OF TENNESSEE v. ARIANA ELIZABETH MAJOR

Appeal from the Circuit Court for Montgomery County

No. 2019-CR-1374 Jill Bartee Ayers, Judge

 Robert T. Bateman, Judge

___________________________________

No. M2021-01469-CCA-R3-CD

___________________________________

CAMILLE R. MCMULLEN, P.J., in which TOM GREENHOLTZ, J., joins concurring.

I concur with the majority opinion’s conclusion based on the narrow issue raised by 

the parties and the existing law in Tennessee. I write separately, however, to highlight how 

the legalization of hemp has fractured the foundation underlying the rule that a drug 

detection dog sniff is not a search subject to Fourth Amendment protections. In my view, 

the cases before this court thus far miss the primary issue—whether a drug detection dog 

sniff that no longer discloses only contraband is itself a search that must be supported by 

probable cause. 

The rule that a drug detection dog sniff is not a search subject to Fourth Amendment 

protections rests on the premise that the dog’s alert “discloses only the presence or absence 

of narcotics, a contraband item.” United States v. Place, 462 U.S. 696, 707 (1983). 

“Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a 

search subject to the Fourth Amendment.” Illinois v. Caballes, 543 U.S. 405, 408 (2005) 

(quoting United States v. Jacobsen, 466 U.S. 109, 123 (1984)). Any interest in possessing 

contraband cannot be deemed legitimate. Id. at 408-09. Therefore, “the use of a welltrained narcotics-detection dog—one that ‘does not expose noncontraband items that 

otherwise would remain hidden from public view,’—during a lawful traffic stop, generally 

does not implicate legitimate privacy interests.” Id. at 409 (quoting Place, 462 U.S. at 707)

(emphasis added). Drug detection dogs thus present a unique situation in which an officer 

can discover the presence of contraband without first establishing probable cause. 

The legalization of hemp possession means that the premise underlying this rule is 

no longer true. Drug detection dogs cannot differentiate between hemp, the possession of 

which is now legal, and marijuana, the possession of which remains illegal. A drug

detection dog sniff, therefore, no longer “discloses only the presence or absence of 

narcotics, a contraband item.” See Place, 462 U.S. at 707. It discloses the presence or 

10/31/2023
- 2 -

absence of hemp, a noncontraband item that individuals now have a legitimate privacy 

interest in possessing. Whether this legitimate privacy interest transforms a drug detection 

dog sniff into a search that must be supported by probable cause remains unanswered.

This question has been presented in other jurisdictions where hemp, or even 

marijuana itself, has been legalized. The answers have varied. See People v. McKnight, 

446 P.3d 397, 408-09 (Colo. 2019) (holding that after Colorado’s legalization of marijuana 

possession, the sniff is a search that must be supported by probable cause); Joseph v. State, 

530 P.3d 1071, 1077-78 (Wyo. 2023) (holding that after Wyoming’s legalization of hemp 

possession, the sniff is still not a search); State v. Walters, 881 S.E.2d 730, 756-59 (N.C. 

Ct. App. 2022) (avoiding the question because the “[t]he legalization of hemp has no 

bearing on the continued illegality of methamphetamine” found in the car, which the dog 

was trained to alert to).

Though this court has begun to hear cases related to a drug detection dog’s inability 

to distinguish between marijuana and hemp, the cases have yet to raise this question. State 

v. Green, No. M2022-00899-CCA-R3-CD, 2023 WL 3944057, at *2 (Tenn. Crim. App. 

June 12, 2023); State v. Bond, No. M2022-00469-CCA-R3-CD, 2023 WL 5559259, at *3

(Tenn. Crim. App. Aug. 29, 2023). Like this case, they challenged only whether the dog’s 

alert was sufficient to establish probable cause. Without further development of whether 

the sniff itself is a search that must be supported by probable cause, law enforcement is left 

in limbo. They must speculate whether their current practices will remain constitutional, 

or whether they must formulate a plan to ensure their dogs will no longer alert to hemp. 

Because this important question has not yet been raised in this court, I write 

separately to highlight the fracture in the foundation underlying the exemption of drug

detection dog sniffs from Fourth Amendment protections.

___________________________________________

CAMILLE R. MCMULLEN, PRESIDING JUDGE