The smell of marijuana is probable cause to search in spite of legalization of hemp. United States v. Boggess, 2020 U.S. Dist. LEXIS 44319 (S.D. W.Va. Mar. 13, 2020):
The Fourth Circuit has not addressed the potential effect legal hemp has on its Fourth Amendment precedent. Similarly, there is very little case law on the subject from other jurisdictions. The Ninth Circuit briefly spoke to the issue in a civil suit brought under 42 U.S.C. § 1983. See Lingo v. City of Salem, 832 F.3d 953, 961 (9th Cir. 2016). In that case, the court held that officers had probable cause to arrest the plaintiff based on a strong marijuana-like odor in her home, despite the plaintiff’s argument that the odor emanated from legal hemp-scented incense. Id.
There is certainly a nationwide movement to legalize or decriminalize marijuana. Perhaps in the future, revisiting this precedent will be warranted. But possession of marijuana is still a criminal offense under West Virginia state law and federal law. See W.Va. Code §§ 60A-4-401 and 60A-2-204; 21 U.S.C. § 841(a). Therefore, Corporal Lowe’s belief that there was likely illegal contraband present in Defendant’s jeep was reasonable based on the odor of marijuana emanating from the vehicle. I find that law enforcement had probable cause to search Defendant’s car and therefore I need not reach the issue of consent.