Tennessee high court weighs effect of State v. Green on Rule 37 certified questions

The Tennessee Supreme Court heard argument Oct. 25 in State of Tennessee v. Torian Chantal Bishop over whether an agreed certified question that asks whether probable cause existed “based exclusively on the allegedly plain smell of marijuana” remains dispositive in light of this court’s decision in State v. Green, and whether changes to Tennessee Rule of Criminal Procedure 37 are warranted.

Appellate Division attorney Jessica Butler, arguing for Bishop, told the court, “We are asking the court to answer 2 questions today,” and urged the justices to hold that the certified question remains dispositive because the trial court’s factual finding was that the officer relied only on the odor. Butler argued that Green reaffirmed a totality-of-the-circumstances test but did not change the law, and that here “the totality of the relevant circumstances is the smell.” She asked the court either to treat the question as dispositive and remand for reconsideration by the Court of Criminal Appeals or, if the court adopts procedural changes, to adopt them in Bishop’s favor, including permitting withdrawal of a guilty plea…