‘Hemp argument’ deemed waived in search challenge on appeal

A defendant’s argument that evidence of marijuana admitted in court was fundamental error because a police officer failed to show he was qualified in distinguishing between the odor of pot and legal hemp was too far out for the Indiana Court of Appeals.

The COA rejected the appeal in Myles Danard Alexander-Woods v. State of Indiana, 20A-CR-01233. Myles Alexander-Woods was convicted in Rush Superior Court of Level 3 felony possession of a narcotic drug, misdemeanor counts of carrying a handgun without a license and possession of marijuana and being an habitual offender.

In his appeal, he challenged the admission of evidence as unconstitutional violations of his unreasonable search and seizure rights under the Fourth Amendment and under Article 1, Section 11 of the Indiana Constitution. Alexander-Woods unsuccessfully moved to suppress evidence that was found in a traffic stop for speeding that led to the charges, but he raised the novel “hemp argument” for the first time on appeal.

“Alexander-Woods failed to assert the ‘hemp argument’ or challenge the police officer’s qualifications below; thus, the issue is waived,” Judge Elizabeth Tavitas wrote. “Moreover, because Alexander-Woods cannot establish fundamental error, his claim must fail.”

A deputy who stopped Alexander-Woods smelled marijuana, leading to the search. In his appeal, Alexander-Woods argued that because hemp is not legal, ““the smell of marijuana is no longer a sufficient basis to establish probable cause because the smell is virtually indistinguishable from the smell of a legal plant like hemp.”

But the court found his failure to raise the issue or even mention hemp at the trial court was fatal on appeal, and that the search of his vehicle under the circumstances was reasonable.a

“Alexander-Woods has not established that the trial court, by its admission of evidence, committed an egregious and blatant error that rendered a fair trial impossible or violated due process” under the Fourth Amendment or the Indiana Constitution.

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