Air Apparent?

The North Carolina Supreme Court upheld two separate cases centered on the question of whether odor can be considered probable cause for a search. 

The cases—State v. Rowdy and State v. Dobson—have been closely watched. Legal challenges involving searches based on what police believe 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. 

The changes also complicated the legal landscape, because hemp and marijuana smell and look exactly the same; no human or even canine nose can tell the difference. 

Some legislators, law enforcement officials, and prosecutors warned early on that the changes would make it nearly impossible to use odor alone as probable cause to justify searching someone’s car or person. The State Bureau of Investigation warned as much in a 2019 memo. 

In these two cases, however, the court ruled that law enforcement officers depended on more than smell to find probable cause for the search. Justices Allison Riggs and Anita Earls wrote the majority opinions in State v. Rowdy and State v. Dobson, respectively. The two Democratic justices argued that the “totality of the circumstances” justified the searches. 

Riggs pointed out in her opinion that Terrell Rowdy had fled from a 2020 traffic stop, pulled into an apartment complex in a “high-crime area,” and had previous drug and weapons convictions. Officers had Rowdy step out of his vehicle, and when they tried to question him, Rowdy turned away from them and called someone on his cell phone. That provided enough reasonable suspicion to search Rowdy and find what they claimed was a “marijuana blunt,” Riggs said.  

The blunt added to the “totality of circumstances” to provide sufficient probable cause to search Rowdy’s car, Riggs wrote, and noted that though the blunt wasn’t tested, Rowdy didn’t mention anything about it being legal hemp when officers confronted him. 

Earls also argued that officers didn’t simply use smell alone to justify a search in Tyron Lamont Dobson’s case. State prosecutors argued that officers had probable cause not only because they smelled alleged marijuana but also because they smelled cologne, which they claim is often used to cover up the scent of illicit drugs. Dobson, who was a passenger in the car, argued it was unconstitutional to use a “double odor” test to justify the search. 

But Earls concluded the officers had other cause to search, including  both a traffic violation, Dobson’s felony record, a pending charge for a violent crime, and another passenger’s prior convictions for drug charges. 

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

The legal landscape remains murky. The court didn’t clearly prohibit officers using smell alone to justify a search; it simply said that in these two cases, officers had more than smell for probable cause. 

A pending decision in a third case, State v. Schiene, might clear the air.