In this long-form blog post, I'll break down the ruling, explain its implications for landmark cases like Gowen v. State (2021) and Kennedy v. State (2024), compare Georgia's situation to progressive rulings in states like Illinois and New York, and offer practical advice for Georgians facing traffic stops. If you've ever worried about a simple whiff leading to an invasive search, read on—this could be the legal shift we've been waiting for.
The Problem: Cannabis Odor as a Gateway to Warrantless Searches in Georgia
For decades, Georgia law enforcement has relied on the "plain smell" doctrine to justify warrantless searches during traffic stops and other encounters. Under the Fourth Amendment to the U.S. Constitution, police need probable cause—reasonable belief that a crime has been committed—to search your vehicle without a warrant. In Georgia, the odor of raw or burnt marijuana has long been deemed sufficient probable cause, as it suggests possession of an illegal substance.
This practice has led to countless searches, arrests, and convictions. But with the passage of the Georgia Hemp Farming Act (GHFA) in 2019 (O.C.G.A. § 2-23-1 et seq.), which legalized hemp products with ≤0.3% Delta-9-THC, the lines blurred. Hemp and marijuana are both from the Cannabis sativa L. plant and smell virtually identical—yet hemp is legal, while marijuana remains a Schedule I controlled substance under Georgia law.
Despite this, the Georgia Court of Appeals upheld the odor-based probable cause in two key cases:
- Gowen v. State (2021): In this interlocutory appeal, police searched Howard Gowen's van after detecting the odor of burnt marijuana. Gowen argued that legal hemp could produce the same smell, but the court rejected this, noting that the GHFA prohibits retail sale of unprocessed hemp flower (O.C.G.A. § 2-23-4(a)(7)). The court reasoned that since raw hemp isn't legally available to consumers in a form resembling marijuana, the smell must indicate illegal activity. The majority affirmed the search, emphasizing that the Act doesn't allow "raw hemp" for public consumption.
- Kennedy v. State (2024): During a search warrant execution at Demetris Kennedy's residence, police found marijuana and other items. While not directly a vehicle search case, the appellate court referenced the GHFA similarly, upholding convictions and noting that hemp isn't available in forms that mimic raw marijuana. The court dismissed arguments that legalization changes the probable cause calculus for odor alone.
These rulings hinged on one core idea: Because retail sale of "flower" hemp (loose buds resembling raw cannabis) is banned, any cannabis-like smell must be incriminating. But as I'll explain, the GDA's new ruling blows a massive hole in this reasoning.
The Game-Changer: GDA Declaratory Ruling 2025-1 on Hemp Pre-Rolls
In response to a petition for clarification, the GDA issued Declaratory Ruling 2025-1, effective in early 2025. This ruling addresses whether pre-rolled hemp cigarettes—essentially ground, dried hemp flower rolled into paper cones for smoking—qualify as prohibited "flower" or as legal "hemp products."
Key excerpts from the ruling:
- The GHFA prohibits retail sale of "the flower or leaves of the Cannabis sativa L. plant, regardless of the total delta-9-THC concentration" (O.C.G.A. § 2-23-4(a)(7)). However, it allows sale of "hemp products that include extracts or derivatives of such flower or leaves."
- The GDA defines pre-rolls as the result of "grinding trimmed and dried hemp flower prior to placing the ground flower into a paper cone or similar wrapping for lighting and inhalation by a consumer."
- Crucially, the ruling states: "The Department notes potential steps in the production of pre-rolled hemp cigarettes that appear to constitute processing, namely grinding hemp flower and rolling that flower into cones... Accordingly, the Department determines that the provisions of the GHFA and Rules that govern the lawful sale of hemp products apply to pre-rolled hemp cigarettes."
In plain English: Pre-rolls aren't "unprocessed flower" (like loose buds in jars). They're processed products, making them legal for licensed retailers to sell, as long as they meet THC limits (≤0.3% Delta-9-THC), labeling, testing, and packaging requirements.
Why is this revolutionary? Hemp pre-rolls smell exactly like raw or burnt cannabis. They can be infused with CBD or other legal cannabinoids, and when smoked, they produce the same odor as marijuana. Now, there's a formal, binding ruling from the state's primary hemp regulator confirming that these products are 100% legal and available at retail. This provides a legitimate, alternative explanation for any cannabis-like smell in your car or on your person.
As the petitioner (yours truly, on behalf of clients) argued: "Hemp 'pre-rolls' obviously smell exactly like raw or burnt cannabis... so now we have a formal ruling that there are indeed hemp products out there that look and smell like marijuana and are 100% legal."
This ruling should "trump" Gowen and Kennedy. Those cases relied on the absence of legal, retail-available hemp that mimics marijuana. With pre-rolls now explicitly legal, the smell alone can no longer be "always incriminating." Police can't distinguish hemp pre-roll odor from marijuana without further investigation—making odor-based probable cause untenable.
Why This Kills the Reasoning in Gowen and Kennedy
Let's dissect the flaws in those cases through the lens of the new ruling:
- Gowen v. State: The majority emphasized that the GHFA doesn't allow retail possession of "raw hemp" resembling marijuana. But pre-rolls do resemble (and smell like) marijuana, yet they're legal. The court's assumption—that no legal hemp product is "designed to be burned or smoked"—is now outdated. As Chief Judge McFadden noted in his special concurrence, probable cause can exist even with a reasonable mistake (e.g., confusing hemp for marijuana). But post-ruling, the mistake isn't reasonable without more evidence, as legal alternatives abound.
- Kennedy v. State: Similarly, the court dismissed hemp arguments by noting hemp isn't available in raw forms. The ruling changes that: Pre-rolls are ground flower, processed just enough to be legal, but they retain the raw smell when unsmoked or burnt odor when lit.
Notwithstanding other issues (like the courts' narrow reading of the GHFA), this declaratory ruling from the GDA—the agency tasked with enforcing hemp laws—carries significant weight. Courts defer to agency interpretations of statutes they administer (Chevron deference principles, though evolving federally, still apply in Georgia). Future appeals could cite this ruling to suppress evidence from odor-only searches.
Lessons from Other States: Illinois and New York Lead the Way
Georgia isn't alone in grappling with post-legalization probable cause. States like Illinois and New York have already ruled that cannabis odor alone isn't enough for searches, setting precedents we can advocate for here.
- Illinois: After recreational cannabis legalization in 2020, the Illinois Supreme Court ruled in People v. Redmond (2024 IL 129201) that the smell of burnt cannabis alone no longer establishes probable cause for a warrantless vehicle search. The court reasoned that legal possession and use make the odor non-incriminating without additional factors (e.g., impairment signs). However, a separate ruling upheld raw cannabis smell as probable cause in some contexts. This distinction mirrors Georgia's hemp-marijuana divide, but Illinois' burnt odor ruling directly supports challenging searches based on smoked pre-rolls.
- New York: Following the Marijuana Regulation and Taxation Act (2021), New York courts and law enforcement shifted dramatically. In People v. Pastrana (2023), the New York Court of Appeals held that the odor of marijuana or legal possession amounts no longer justify searches. An NYPD memo explicitly states: "Effective immediately, the smell of marijuana alone no longer establishes probable cause." Recent proposals by Gov. Kathy Hochul to reinstate odor as evidence for impaired driving faced opposition, highlighting the post-legalization consensus against odor-only searches.
These states recognize that legalization creates ambiguity: Odor could indicate legal activity. Georgia's hemp laws create similar ambiguity, and the pre-roll ruling amplifies it. As your lawyer, I'll argue in court that Georgia should follow suit—protecting innocent hemp users from unwarranted intrusions.
What This Means for You: Practical Advice from a Georgia Marijuana Lawyer
If you're pulled over and an officer claims to smell cannabis:
- Stay Calm and Know Your Rights: Politely decline consent to search. Say, "I do not consent to any searches." Record the interaction if safe.
- Invoke the Ruling: Mention legal hemp pre-rolls as a possible source. Officers must articulate more than odor for probable cause now.
- Challenge in Court: If searched, file a motion to suppress citing the GDA ruling, Gowen/Kennedy flaws, and out-of-state precedents. Evidence from invalid searches can be excluded.
- Hemp Users Beware: While pre-rolls are legal, carry proof (e.g., packaging with COA). Avoid driving impaired—DUI laws still apply.
This ruling doesn't decriminalize marijuana, but it safeguards hemp consumers and chips away at overbroad policing. If facing charges, contact me immediately—time is critical for suppression motions.
A Step Toward Fairer Policing in Georgia
The GDA's Declaratory Ruling 2025-1 is a watershed moment, proving that legal hemp products like pre-rolls can explain cannabis odors without implying crime. This directly undercuts Gowen and Kennedy, aligning Georgia with Illinois and New York's progressive stance. As cannabis laws evolve, so must our protections against unreasonable searches.
If you've been affected by an odor-based search, don't wait—call George Creal at (404) 333-0706 or visit georgecreal.com for a free consultation. Let's fight for your rights together.
Disclaimer: This post is for informational purposes only and not legal advice. Consult an attorney for your specific case.
Petition for Declaratory Ruling on Matters Relating to Hemp and Hemp Products