Smells Like 4th Amendment

An attorney is asking the North Carolina Supreme Court to withdraw a recent ruling justifying a search based partly on what police believed to be the smell of marijuana. 

Last month, the court upheld two cases—State v. Rowdy and State v. Dobson—that questioned whether odor can still be considered probable cause in a state where hemp is legal and smells exactly the same as marijuana, which remains illegal. Challenges over searches based on what police claim to be the smell of marijuana have been stacking up ever since state legislators legalized growing hemp in 2019 to fall in line with federal law. 

In 2022, legislators permanently declassified hemp as a controlled substance, opening the door to a wide variety of hemp-derived products and paving the way for a multimillion-dollar business in North Carolina. As The Assembly revealed in an investigation last week, legalization without regulation has led to many intoxicating hemp-derived products being on the market with higher THC levels than advertised, and that contain bacteria and other contaminants. 

Benjamin Kull, the attorney in the Dobson case, filed a motion last week asking the court to withdraw its May ruling. 

The decision “repeatedly violates the rule of law in order to allow the very type of ‘evil’ the [Fourth] Amendment was designed to prevent,” Kull wrote. 

The Dobson case stems from the January 2021 arrest of Tyron Lamont Dobson, a passenger in a car leaving a nightclub. Greensboro police officers got a report of a gun in the car and stopped the vehicle for going 55 miles per hour in a 45 zone. Officers quickly learned that the driver was a probation officer who had a legal right to carry the gun. 

But they also said they smelled marijuana and cologne, which they alleged was used to cover up the scent of illegal drugs. Dobson was later indicted for possession of a firearm by a felon, misdemeanor carrying a concealed weapon, and misdemeanor marijuana possession. 

The Court of Appeals ruled the search was justified because the officers didn’t only go off the smell of what they believed to be marijuana; there was also the cologne. Kull argued to the state Supreme Court that the “double-odor” was insufficient probable cause. 

In his latest motion, Kull says that the court not only sidestepped whether the mere smell is probable cause for a search, it created two additional justifications that neither the trial court nor the Court of Appeals considered. 

Justice Anita Earls argued in the majority decision that the “totality of the circumstances” supported the search, and that Greensboro police had plenty of reason to suspect possible wrongdoing. It wasn’t just that officers smelled alleged marijuana and cologne, she wrote. They had stopped the vehicle for speeding, and Dobson had both a felony record and a pending charge for a violent crime. And, she added, another passenger had prior convictions for drug charges. 

“We hold that the smell of marijuana and the smell of a cover scent were not the only factors on which the officers relied in making their probable cause determination,” she wrote.

Kull said a top-to-bottom search of someone’s vehicle is the kind of invasive government action that triggered the American Revolution, and it shouldn’t be justified because of a speeding violation. Searches also shouldn’t serve as a pretext to finding evidence for some unspecified criminal activity, he argued. 

The court’s ruling leaves people who purchase legal hemp in an untenable Catch-22. 

“If you leave your lawful cannabis open to detection, then you are automatically and unavoidably placing your freedom and your constitutional rights at risk,” Kull wrote. “But, if you unsuccessfully try to conceal your lawful cannabis from detection, then your freedom and your constitutional rights are now at even greater risk.” 

He offered an example that The Assembly has previously written about—a pending federal lawsuit from Dominique Prather, then a student at North Carolina A&T State University. According to the suit, she and a friend had bought two grams of hemp from a store in Greenville on June 14, 2024.  

When a Greenville police officer stopped Prather and asked her whether she had been smoking, she told the officer she had bought hemp and offered to show him a receipt on her phone. He declined, but told her that he believed her. Then he called additional officers to search Prather and her car. They seized the two grams of hemp, and the officer cited Prather for misdemeanor possession of marijuana, according to the lawsuit. He told her that the dispensary likely sold her illegal marijuana, which he said was why she was being cited, according to the lawsuit. 

Under the state Supreme Court’s recent decisions, “this officer acted properly,” Kull said. 

Phil Dixon, a professor at UNC School of Government, said the legal landscape remains as murky as ever. 

“They’re really non-decisions,” he said. 

The Supreme Court has not ruled on Kull’s motion. The N.C. Attorney General’s Office did not respond to a request for comment before publication. In hearings and court documents, state prosecutors have strongly defended the use of smell as probable cause for searches. 

Now, attention has shifted to the only remaining case on this issue pending before the state’s highest court: State v. Schiene, a 2020 case in which Charlotte-Mecklenburg police officers searched a man’s vehicle after claiming they smelled unburned marijuana. The court heard arguments in this case in September, but Kull, who is also an attorney in that case, has filed a separate motion asking the court to hear additional arguments in light of the Dobson ruling.