Howard Gowen v. State, A21A0651

Officer Fields ran the plate of a minivan and learned a U.S. Marshal warrant had been issued for Gowen, the registered owner; Fields later saw the van parked and Gowen walking away and detained him to confirm the warrant.
While detained, Gowen asked to call his sister and handed Fields the van keys, asking Fields to retrieve his phone from the center console; when Fields opened the van he detected the odor of burnt marijuana.
Police later confirmed the warrant related to amphetamines, arrested Gowen on the warrant, and searched the van; they found a small white/yellowish rock that appeared to be crack cocaine, loose marijuana "shake" in a box, and smoking devices.
Gowen moved to suppress, arguing the Georgia Hemp Farming Act (GHFA) legalized hemp and hemp smells like marijuana, so the odor cannot establish probable cause to search because officers cannot distinguish hemp from marijuana by smell.
The trial court denied the motion, concluding the odor of burnt marijuana together with the subject matter of the warrant provided probable cause; Gowen obtained interlocutory appellate review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether odor of marijuana still supplies probable cause to search a vehicle after the GHFA legalized hemp	Gowen: hemp and marijuana smell the same; because hemp is lawful the odor cannot identify illegal marijuana and thus cannot supply probable cause	State: GHFA prohibits retail sale of unprocessed hemp; raw hemp resembling marijuana is not lawfully sold to consumers, so an officer may reasonably infer burnt marijuana from the odor	Court affirmed: odor of burnt marijuana provided probable cause; GHFA does not authorize retail sale of raw hemp that would defeat the inference
Whether seizure of the small rock was lawful and whether trial court erred by failing to make explicit findings that it was readily apparent contraband	Gowen: the rock was not immediately identifiable as contraband and the court failed to make factual findings, so seizure should be suppressed	State: officer had drug-recognition training and experience; probable cause existed to believe the item was crack cocaine; omission of explicit findings does not defeat implicit findings supported by the record	Court affirmed: officer's training/experience gave probable cause to seize; implicit factual findings are presumed and the record supports the seizure

Edwards v. State, 357 Ga. App. 396 (discussing appellate review and deference on suppression rulings)
Jones v. State, 319 Ga. App. 678 (odor of marijuana emitting from vehicle provides probable cause to search)
State v. Folk, 238 Ga. App. 206 (trained officer's detection of burning marijuana supports warrantless vehicle search)
Douglas v. State, 303 Ga. 178 (odor-as-probable-cause principle affirmed)
Brown v. State, 269 Ga. 830 (probable cause requires a practical probability, not certainty)
Heien v. North Carolina, 574 U.S. 54 (Fourth Amendment allows reasonable factual mistakes by officers)
Combs v. State, 271 Ga. App. 276 (probable cause standard is a practical, nontechnical probability)
Miller v. State, 261 Ga. App. 618 (officer need not know with certainty an item is contraband, only probable cause)
Glenn v. State, 285 Ga. App. 872 (plain view seizure rule for officers lawfully positioned)