A state prosecutor argued to the state Supreme Court on Tuesday that even producing a receipt for legal hemp shouldn’t stop law enforcement from searching your vehicle simply because they say they smell marijuana.
The court heard oral arguments in three different cases—State v. Schiene, State v. Dobson and State v. Rowdy—centered on the question of whether odor alone can be considered probable cause when legal hemp and illegal marijuana smell exactly the same.
No human or even canine nose can tell the difference. And officers have no field tests to definitively tell the difference if they seize a leafy substance during a search. The State Crime Lab doesn’t even have the testing capability to make that determination.
That has made North Carolina’s legal landscape murky. It’s also led to people having their constitutional rights against unreasonable searches and seizures violated, argued Benjamin Kull, an attorney representing defendants in two of the cases.
Kull noted that both law-enforcement officers and prosecutors warned legislators that legalizing hemp growing would essentially legalize marijuana, as did the State Bureau of Investigation in a 2019 memo. But Kull said state legislators also knew that hemp would become a certified “cash crop” if they removed the barriers, which they did in 2019.
Now, law-enforcement officials and prosecutors want the state Supreme Court to do what the legislators didn’t do and essentially ban smokable hemp, Kull said.
“It’s like they wanted to borrow the keys from Mom and Mom said no, and now, they’re asking Dad,” he said.
It appeared that a slight majority of the state Supreme Court would rule to keep the odor-alone rule in place. The court has a 5-2 Republican majority, and many of those justices argued that smell alone is probable cause. The legal standard for probable cause to search, Justice Trey Allen said, is not the same as what’s needed to obtain a conviction.
Justice Phil Berger Jr. asked whether an officer using smell in these cases is any different than if they saw someone drinking a Guinness while driving. That officer, Berger said, would have probable cause to pull that driver over and investigate, even if it turned out that the driver was actually drinking a non-alcoholic beer.
Kull and Steven Fuller, who represented the defendant in State v. Rowdy, argued that officers should default to a “totality of the circumstances” standard for probable cause, which would mean officers don’t automatically search someone’s property based on smell alone. They would need to consider other factors that could dispel their reasonable suspicion that illegal activity is occurring, such as asking the driver additional questions and allowing the driver to produce a receipt showing they had purchased legal hemp.
But Zachary Dunn, a special deputy attorney general, said showing a receipt or having a package of legal hemp shouldn’t prevent officers from searching a person’s vehicle; someone could carry a receipt or a package of legal hemp to cover up illegal weed possession.
Dunn’s boss, N.C. Attorney General Jeff Jackson, called for ending the federal prohibition on cannabis when he ran for U.S. Senate several years ago. Jackson has most recently pushed for regulating the hemp industry and has not spoken about legalizing or decriminalizing marijuana. But prosecutors are arguing that for now, marijuana is illegal and that odor is sufficient for probable cause.
Justice Richard Dietz was the only Republican who seemed sympathetic to the defense, suggesting that the court should adopt a “totality of circumstances” analysis.
There is no timeline for when the court will issue rulings in these cases.
