ROSALES URRUTIA v. STATE (2026)

In this interlocutory appeal, Crissell Stephanie Rosales-Urrutia a/k/a Crissell Rosales (“Rosales”) challenges the denial of her motion to suppress evidence obtained during a traffic stop pursuant to a warrantless search of her vehicle. In two related enumerations of error, Rosales contends that the trial court erred by denying the motion because the odor of suspected marijuana alone did not provide probable cause to justify the search under the totality of circumstances. For the reasons that follow, we affirm.

“In reviewing a ruling on a motion to suppress, we review the trial court's factual findings for clear error and its legal conclusions de novo.” Lumpkin v. State, 310 Ga. 139, 150(3), 849 S.E.2d 175 (2020). In so doing, “we construe the evidence in the light most favorable to upholding the trial court's findings and judgment.” Douglas v. State, 361 Ga. App. 120, 120–21(1), 863 S.E.2d 379 (2021) (quoting Thomas v. State, 287 Ga. App. 262, 651 S.E.2d 183 (2007)).

So viewed, the record reflects that on November 12, 2022, a police officer with the City of South Fulton conducted a traffic stop of a vehicle driven by Rosales after the officer's license plate reader indicated that the vehicle had an expired tag and the officer learned from the Georgia Crime Information Center (“GCIC”) that Rosales, to whom the tag was registered, had an outstanding arrest warrant. Rosales was driving the vehicle with one passenger. Upon making contact with Rosales, the officer detected an odor emanating from the vehicle that he suspected to be burnt marijuana based on his training and experience. The officer advised Rosales of the reason for the stop and confirmed the active warrant before placing her in custody in the back of his vehicle.¹

After arresting Rosales, the officer conducted a search of her vehicle based on the odor of suspected burnt marijuana coming from the vehicle. The officer told Rosales that this odor was the reason for the search, and Rosales stated that she had recently smoked in the vehicle but did not specify what she had smoked. The officer acknowledged on cross-examination that hemp is legal to possess in Georgia and that his training and experience did not allow him to distinguish the odor of legal hemp from the odor of illegal marijuana. The vehicle search yielded a small plastic bag containing a brown crystalline substance that a roadside drug test indicated to be methamphetamine.² The search also yielded two glass smoking devices and an e-cigarette or “vape” pen containing a gold or yellow waxy substance that the officer suspected to be an illicit marijuana product.³ Once these items were recovered, rather than impounding Rosales's vehicle, the officer allowed the other occupant to drive the vehicle from the scene.

Rosales was indicted for possession of methamphetamine and operating a motor vehicle with an expired registration. She subsequently moved to suppress evidence from the search on the basis that the officer lacked probable cause to conduct it. After a hearing, the trial court denied the motion, finding that the officer had probable cause to search Rosales's vehicle based on the odor of what he suspected to be marijuana based on his training and experience. Thereafter, the trial court granted Rosales's request for a certificate of immediate review, and this Court granted her application for interlocutory appeal.

In two related enumerations of error, Rosales contends that the trial court erred by denying her motion to suppress because the officer lacked probable cause to conduct a warrantless search of her vehicle based solely on the odor of suspected marijuana under a totality-of-circumstances analysis. Specifically, Rosales argues that because the Georgia Hemp Farming Act, OCGA § 2-23-1 et seq. (“GHFA”) legalizes the possession of certain forms of cannabis, the odor of which is similar to that of illegal marijuana, the odor of marijuana does not by itself necessarily indicate criminal activity, and the officer in this case provided no other reasons for suspecting the presence of an illegal substance aside from odor. We disagree.

Under the automobile exception to the warrant requirement imposed by the Fourth Amendment, a police officer may search a car without warrant if he has probable cause to believe the car contains contraband, even if there is no exigency preventing the officer from getting a search warrant. Applying this exception, our Supreme Court and this Court have held that where a trained police officer detects the odor of ․ burnt marijuana coming from a vehicle, the officer has probable cause to conduct a warrantless search of the vehicle, provided that the officer's ability to identify the odor is placed into evidence. Such a search can encompass every part of the vehicle which might have concealed the drug contraband, including the trunk and closed containers.

Coverstone v. State, 371 Ga. App. 238, 241, 899 S.E.2d 351 (2024) (punctuation omitted) (citing Hill v. State, 351 Ga. App. 58, 61 (1), 830 S.E.2d 478 (2019)).

“Probable cause to search an automobile exists when the facts and circumstances before the officer are such as would lead a reasonably discreet and prudent man to believe that the contents of the vehicle offend the law. This inquiry is based on the totality of circumstances surrounding a transaction.” Ross v. State, 323 Ga. App. 28, 29(1), 747 S.E.2d 81 (2013) (citation and punctuation omitted).

Rosales contends that the GHFA nullifies precedent holding that the odor of marijuana provides probable cause for a warrantless search of a vehicle because hemp is now legal in Georgia, and legal hemp and illegal marijuana have similar odors. Under the GHFA, effective May 10, 2019, “the licensed cultivation of hemp with a specifically defined level of THC, the manufacture of products from that hemp, and the possession of those products was legalized.” Coverstone, 371 Ga. App. at 241, 899 S.E.2d 351 (quotation omitted) (citing Gowen v. State, 360 Ga. App. 234, 236, 860 S.E.2d 828 (2021)). See also OCGA § 16-13-21(16) (legalizing possession of hemp and hemp products as defined in OCGA § 2-23-3); OCGA § 2-23-3(3) (2021) (defining “hemp products” as products available for commercial sale made from hemp and containing no more than 0.3% THC).

Since the passage of the GHFA, we have had two occasions to address the argument raised by Rosales. In Gowen, 360 Ga. App. at 234, 860 S.E.2d 828, the defendant argued that an officer lacked probable cause to search his vehicle based on the odor of burnt marijuana because he possessed legal hemp with an odor indistinguishable from that of illegal marijuana. See id. at 237(1), 860 S.E.2d 828. However, the record did not reflect that the hemp he possessed was designed to be burned or smoked. See id. at 237–38(1), 860 S.E.2d 828. Under those circumstances, which included the fact that the defendant had an outstanding arrest warrant for a drug-related offense, see id. at 236–37, 860 S.E.2d 828, we affirmed the trial court's determination that the odor of burnt marijuana coming from his vehicle “provided police with probable cause to search that vehicle.” Id. at 238(1), 860 S.E.2d 828.

In Coverstone, 371 Ga. App. at 238, 899 S.E.2d 351, the defendant argued that an officer lacked probable cause to search his vehicle based on the odor of marijuana because he possessed legal hemp, the odor of which was indistinguishable from that of illegal marijuana. See id. at 241–42, 899 S.E.2d 351. Unlike in Gowen, the defendant in Coverstone presented evidence that the hemp he possessed was designed to be burned or smoked. See id. at 242, 899 S.E.2d 351. Nevertheless, we affirmed the trial court's denial of the motion to suppress because under the totality of those circumstances, including the defendant's admission to marijuana use four hours earlier and the officer's observations of the defendant exhibiting physical symptoms of marijuana impairment and impaired driving, the officer had probable cause to search the defendant's vehicle. See id. at 242–43, 899 S.E.2d 351. Consequently, this Court did not reach the issue of whether the odor of marijuana by itself provides probable cause to search a vehicle in light of the GHFA. See id. Thus, to the extent that the trial court found that Coverstone held that the GHFA “did not undermine established precedent that the smell of marijuana can establish probable cause to search a vehicle,” the trial court misinterpreted the holding of Coverstone.

Rosales argues that the circumstances of this case require us to revisit the question of whether the odor of marijuana alone can support a probable cause finding. She contends that the officer did not observe any sign of impairment during his interaction with her or observation of her driving to suggest that she had recently smoked marijuana, and although she acknowledged smoking in her car, she never indicated what she had smoked. Nevertheless, this argument ignores the fact that when confronted by the officer about the smell of suspected burnt marijuana emanating from her vehicle, Rosales stated that she “had smoke[d] in the car recently.” Although this statement is equivocal on its face, given the context in which it was made, a reasonable officer could have interpreted it as an admission to recent marijuana use in the vehicle. See Hughes v. State, 296 Ga. 744, 749(2), 770 S.E.2d 636 (2015) (“Because the standard for probable cause depends on what a reasonable officer could have concluded from th[e] facts and circumstances, the standard of probable cause is an objective one, and the subjective thinking of the actual officers in a particular case is not important.”). While this statement is susceptible to an innocent explanation, i.e., that Rosales had recently smoked something in her vehicle other than illegal marijuana, a reasonable officer would not have been required to draw this conclusion. See id. (“[W]here the totality of facts and circumstances known to an officer would permit reasonable officers to draw differing conclusions ․, probable cause exists, and it is for the officer — not judges, trial or appellate — to decided which ․ conclusions to draw.”) Moreover, the applicable standard of review in this case requires us to construe the evidence in the light most favorable to the trial court's judgment. See Douglas, 361 Ga. App. at 120-21(1), 863 S.E.2d 379. As such, we construe Rosales's statement that she recently smoked in her vehicle as an admission to recent marijuana use in the vehicle, which supports the trial court's finding of probable cause.

Thus, contrary to Rosales's argument, this case does not require us to revisit our prior legal precedent specific to odor-only probable cause. Based on the totality of circumstances, including the officer's detection of the odor of burnt marijuana emanating from Rosales's vehicle and her admission to recently smoking something in the vehicle that the officer could have reasonably inferred to be illegal marijuana, there was probable cause to justify the search of Rosales's vehicle. Accordingly, the trial court did not err by denying the motion to suppress.⁴

Judgment affirmed.

FOOTNOTES

1.   The other occupant of Rosales's vehicle was also removed from the vehicle at the time of Rosales’ arrest.

2.   This substance was later submitted to the Georgia Bureau of Investigation (“GBI”) for testing, which confirmed that it was methamphetamine.

3.   This substance was also submitted to the GBI for testing but was never identified.

4.   Rosales also argues that the legalization of hemp in Georgia renders the warrantless search a constitutional equal protection violation. However, Rosales offers no citation or argument in support of this proposition. See Court of Appeals Rule 25(d)(1) (“Any enumeration of error that is not supported in the brief by citation of authority or argument may be deemed abandoned.”). Moreover, this argument was neither raised nor ruled on below, so we do not consider it. See Lankford v. Orkin Exterminating Co., 266 Ga. App. 228, 232(4), 597 S.E.2d 470 (2004) (“It is axiomatic that matters neither raised nor ruled on below, particularly constitutional questions, may not be considered on appeal.”).

Doyle, Presiding Judge.

Markle and Padgett, JJ., concur.