Here is a thing most people in Georgia don't know, and a thing a surprising number of lawyers get slightly wrong.

If a police officer says he smells marijuana coming from your car, that is enough — by itself — to let him search the whole vehicle. Trunk, closed containers, all of it. No warrant. Georgia courts have said so for decades. State v. Folk in 1999. Jones v. State in 2013. Our Supreme Court in Douglas v. State in 2018.

Then, in May 2019, Georgia legalized hemp.

That should have been a problem for the odor rule, and everybody saw it immediately. Hemp is the same plant as marijuana. Below 0.3% THC it's legal; above, it's a crime. And critically: it smells identical. Burnt, raw, doesn't matter. No officer alive can sniff the difference between a legal substance and an illegal one when the two are chemically the same plant.

So the argument wrote itself. If the smell is equally consistent with something legal, it can't establish probable cause that a crime is occurring. That's not a clever defense trick — that's just what probable cause means.

Georgia's Court of Appeals took that argument up in 2021, in a case called Gowen v. State. And it rejected it.

Which is where almost everyone stops reading. That's the mistake.

What Gowen actually said

Howard Gowen was in Athens. Police had a federal warrant for him — amphetamines — and picked him up in a parking lot. While they were confirming the warrant, Gowen asked to call his sister, who happened to be a lawyer. He handed an officer his keys and asked him to grab his phone out of the center console. The officer opened the van and smelled burnt marijuana. After the arrest, they searched the van and found what looked like crack cocaine, some loose marijuana shake, and smoking devices.

Gowen moved to suppress. His argument was the hemp argument. His sister testified that she'd been in a hemp store with him shortly before the arrest and that the hemp there looked and smelled almost exactly like marijuana. The officer conceded on cross that he'd had no training on what hemp smells like and didn't know whether burnt hemp smells like burnt marijuana.

The Court of Appeals affirmed the denial anyway. But read how.

The court said Gowen would have to show that the Hemp Farming Act "permits the retail sale of raw hemp — i.e., hemp in a form that resembles marijuana." And it doesn't. The Act makes it unlawful for anyone "to offer for sale at retail the unprocessed flower or leaves of the hemp plant." O.C.G.A. § 2-23-4(a)(7). It also says that "processing" doesn't include "merely placing raw or dried material into another container or packaging raw or dried material for resale." So you can't legally buy hemp that looks like a bag of weed. Fair enough.

And then comes the sentence nobody quotes:

"And the record contains no evidence showing that although the GHFA prohibits the commercial sale of raw hemp, there nevertheless exists a processed hemp product that is designed to be burned or smoked."

Read that twice.

That is not a holding that no legal smokable hemp product exists. It is a finding that Gowen didn't prove one existed. The court is telling you, in plain language, exactly what was missing from the record in front of it.

There is a world of difference between "the law forecloses this argument" and "this defendant didn't put on the evidence." Gowen is the second one. It gets cited as the first one constantly — including, until this week, on a page I wrote myself.

The defendant who filled the hole

Fast forward to March 2024. Coverstone v. State.

Nickolas Coverstone got stopped one December evening — expired out-of-state tag, and he'd rolled a little past the stop line at a red light. The officer noticed red, bloodshot eyes and slow, deliberate speech. She smelled marijuana. She ran him through a horizontal gaze nystagmus test and cleared him for alcohol. He gave her three different answers about where he'd been: leaving work, then a bookstore, then a bar. He denied drinking. She asked about his eyes; he said he'd been crying.

Eventually he admitted he'd smoked marijuana about four hours earlier. He also said he regularly smoked CBD, had smoked a CBD cigarette at the bar, and had another one in the car.

And here's the part that matters. Coverstone did what Gowen didn't: he put on evidence that his CBD cigarette was designed to be burned and smoked. The exact gap the Gowen court had identified. The Court of Appeals said so explicitly — "unlike Gowen, Coverstone has presented evidence that the CBD cigarette he possessed was designed to be burned or smoked."

So did the court finally answer the question?

No. It sidestepped. Because this particular officer hadn't relied on odor alone — she had the driving, the eyes, the shifting answers about where he'd been, and his own admission to smoking marijuana that day — the court held that probable cause rested on the totality of all of it. And therefore, in its words, the case "does not require us to revisit our prior legal precedent."

Search upheld. Question dodged.

What's actually open

Put those two cases side by side and here is where Georgia law honestly stands:

Nobody has decided whether the odor of marijuana, standing alone, still establishes probable cause against a driver who can prove he possessed a legal, smokable hemp product.

Gowen didn't decide it — the defendant hadn't built the record. Coverstone built the record and the court declined to reach it because it didn't have to. And nothing since has decided it either — though checking that turned out to be its own small lesson, which I'll come back to.

What has happened since, and why none of it closes the question

Three Georgia Court of Appeals decisions have touched hemp since Coverstone. None of them reaches the odor question. Two of them are worth knowing anyway.

The one that looks like it matters and doesn't. Kennedy v. State, No. A23A1412, came down on March 15, 2024 — eleven days after Coverstone — and it quotes Gowen for exactly the line everyone quotes it for: the Hemp Farming Act "does not authorize making hemp available to individual consumers in a form that resembles raw marijuana."

If you find that cite first, you will conclude the question is closed. It isn't, for three reasons. Kennedy was a sufficiency-of-the-evidence challenge to a possession-with-intent-to-distribute conviction — there is no probable cause holding in it. The offense was committed in February 2019 and the Hemp Farming Act did not take effect until May 2019, so the court held those provisions "play no role in our evaluation of the sufficiency of the evidence here." And the Gowen discussion is expressly the alternative ground, introduced with the words "Even if this were not the case." The opinion is unanimous — Pipkin, J., with Dillard, P. J., and Rickman, J. — so it is binding. It is binding on something else.

That is now the third time in this piece that Gowen gets carried further than it went. Once by the case-summary sites. Once by me, on my own page. And once by the Court of Appeals itself, in dicta, on a charge from before the statute existed.

The two that quietly help. Patel v. State, 375 Ga. App. 1, 914 SE2d 412 (2025), and State v. Islam, No. A23A1702 (Ga. Ct. App. Oct. 28, 2025), are both about delta-8 products sold in stores, not odor at a roadside. Both hold that the State must prove a delta-9-THC concentration above 0.3 percent before a THC product is a controlled substance at all — the presence of delta-8 alone does not do it. Islam, describing Elements Distribution, puts the consequence plainly: "an assertion that an individual possessed Delta-8 or Delta-10 THC products would not be enough to provide probable cause to support a warrant."

Handle that sentence carefully. Elements Distrib. v. State, 369 Ga. App. 844 (894 SE2d 641) (2023), is physical precedent only, and the Islam court says so in the same breath. It is persuasive, not binding. But the direction of travel is real: when a substance is lawful in some forms and unlawful in others, Georgia's appellate courts keep putting the burden of telling them apart on the State. That is the same argument the odor question turns on, arriving from a different road.

And here is the lesson I promised. My first search for post-Coverstone authority was hemp odor marijuana probable cause Gowen. It returned nothing. Searching the single word hemp returned all three cases above. A narrow query on a full-text database does not tell you a case doesn't exist — it tells you your query was narrow. If you are relying on a "nothing since" claim in anything, including this, check how the claim was generated.

That's not a loophole and I'm not going to oversell it. The odor rule is alive, it's binding, and if an officer stacks a few other observations on top of the smell, you are going to lose that motion. Coverstone lost it, and he was right on the law he was arguing.

But "we've never squarely decided this" is a very different posture than "settled against you," and a lot of people — defendants and lawyers both — treat it as the latter.

For anyone litigating one of these: the gap Gowen names is an evidentiary gap. It closes with evidence. Smokable hemp products exist, they are sold openly, and proving that at the hearing is not hard. Whether that's enough to move the rule is untested. Untested is not the same as lost.

Two footnotes for the lawyers

On precedent. Chief Judge McFadden concurred specially in the relevant division of Gowen — he'd have affirmed on a different theory entirely, that the officer's mistaken-but-reasonable belief was enough under Heien v. North Carolina. Under the Court of Appeals' old rule, one special concurrence would have knocked that division down to physical precedent only. It doesn't anymore: Rule 33.2(a)(1) was amended effective August 1, 2020 to require only that a majority of judges fully concur in rationale and judgment. Two of the three did. Gowen is binding. Check the decision date against the rule change before you rely on the old arithmetic — I nearly got this backwards myself.

On which statute. This whole line of cases runs on the Georgia Hemp Farming Act, O.C.G.A. § 2-23-1 et seq. — hemp and CBD. It is a separate track from Georgia's low-THC medical cannabis program, which has its own rules, its own limits, and its own recent changes. Don't let the two blur together; the analysis isn't the same.

Ed Napier is a criminal defense attorney in Douglasville, Georgia. This is general commentary on Georgia appellate law, not legal advice about anyone's particular case — and if you have a particular case, the details will matter more than anything written here.

Cases discussed: Gowen v. State, 360 Ga. App. 234, 860 S.E.2d 828 (2021) (No. A21A0651, decided June 25, 2021); Coverstone v. State, No. A23A1619 (Ga. Ct. App., decided March 4, 2024); Kennedy v. State, No. A23A1412 (Ga. Ct. App., decided March 15, 2024); Patel v. State, 375 Ga. App. 1, 914 S.E.2d 412 (2025) (No. A24A1477, decided March 14, 2025); State v. Islam, No. A23A1702 (Ga. Ct. App., decided October 28, 2025); Elements Distrib. v. State, 369 Ga. App. 844, 894 S.E.2d 641 (2023) (physical precedent only).

A note on one citation. The Islam court describes Patel as binding precedent. The text of the Patel opinion ends "Rickman, P. J., concurs specially and Mercier, C. J., concurs in judgment only," which leaves only the authoring judge fully concurring — physical precedent under Court of Appeals Rule 33.2 (a) (1). I have not resolved that discrepancy and am not going to guess at it in print. If you intend to lean on Patel, check its concurrence line in the published reporter yourself.