The Smell Test

Codie Bruce Schiene was sitting in his SUV in a hotel parking lot, scrolling through his phone, when two Charlotte-Mecklenburg police officers approached him back in 2020. He told them he was a guest at the Baymont Inn. 

The officers quickly ordered Schiene and his nephew out of the GMC Acadia and handcuffed them, then searched the vehicle. 

It was a warrantless search, but Sgt. William Buie said he had probable cause: He smelled unburned marijuana, according to court records. The officers said they found one open jar of marijuana, one closed jar of marijuana, and a loose nugget of marijuana, all of which was unburned. They also found a handgun. 

Schiene was arrested for possessing a firearm while a felon and possessing a stolen firearm. He was later indicted on being a “habitual felon,” meaning he had at least three prior felony convictions on his record. Classification as a habitual felon pushed his eventual sentence to a maximum of eight years in prison. 

His attorney, Benjamin J. Kull, argued to the North Carolina Court of Appeals in February that there is no way that Buie can prove he smelled marijuana. Hemp is legal in North Carolina, and it looks and smells just like marijuana. No trained law-enforcement officer or K9 dog could tell the difference, he said. He called the legalization of hemp several years ago a paradigm shift. 

“The ‘smell of marijuana’ no longer exists,” Kull told the three-judge panel. “That’s a scientific impossibility based on the definitions the General Assembly has given us.”

That “scientific impossibility,” however, led to Schiene receiving the maximum sentence. He pleaded guilty to all three charges after a judge denied his motion to suppress evidence that police seized as a result of searching Schiene’s vehicle. Schiene was never charged with marijuana possession, even if it was what led police to search his car. 

Schiene’s case is one of several before the Court of Appeals that raises the question of whether law enforcement can still use the odor of marijuana as probable cause to search vehicles, homes, or businesses. On Tuesday, the Court of Appeals ruled in State v. Dobson that the odor of marijuana can still be used as probable cause. In that case, Tyron Dobson was arrested in January 2021 after Greensboro police searched the vehicle he was in after claiming they’d smelled a faint odor of marijuana. The court ruled that police officers had other reasons, other than smell, to justify the search.

Kull told the court in February that the legalization of hemp means he now has as much right to smoke a hemp cigarette while he drives as he does a Marlboro. He has no worries if he gets pulled over for speeding while in possession of the latter. 

But if police stop him while he’s smoking a hemp cigarette, he’d be concerned because the smell alone “puts my constitutional rights in danger,” even though he hasn’t done anything wrong. 

Experts say that the legal system in North Carolina has yet to recognize the paradigm shift that hemp legalization has created. Nor have state legislators done anything to fix the problems created by legalizing hemp without decriminalizing marijuana, as both are from the same plant species, Cannabis sativa—despite plenty of warning from law enforcement agencies.  

A Warning Unheeded

North Carolina started a pilot program allowing farmers to grow hemp in 2015, and three years later, Congress passed a federal farm bill that legalized hemp-growing across the country. In 2019, North Carolina legislators proposed a bill that would bring the state in line with federal law. 

State lawmakers passed that bill without banning smokable hemp or regulating the sale or use of hemp, and in 2022, the General Assembly permanently declassified hemp as a controlled substance. 

But in 2019, a conflict arose between those who wanted to take advantage of an industry that is expected to grow to $18.1 billion globally by 2027 and those who were concerned that legalization would cause problems for law-enforcement officers, particularly in light of new hemp products that were similar in look and smell to marijuana. 

Law-enforcement leaders and prosecutors urged lawmakers to explicitly ban smokable hemp, and the State Bureau of Investigation issued a five-page memo warning about the very scenario playing out today: “The unintended consequence upon passage of this bill is that marijuana will be legalized in NC because law enforcement cannot distinguish between hemp and marijuana and prosecutors could not prove the difference in court.” 

The psychoactive ingredient in marijuana is delta-9-tetrahydrocannabinol, or THC. It is what gets people high. Under federal and state law, marijuana is defined as cannabis having 0.3 percent delta-9-THC. Anything lower than that is legal. 

Hemp has low levels of THC and high levels of cannabidiol, or CBD, which is not psychoactive and is often used to treat medical conditions such as epilepsy. 

The emergence of hemp-infused products such as delta-8 and delta-10 has made things even more complicated. Those products are different cannabinoids that have similar psychoactive effects as delta-9-THC. But they are considered legal and there are few regulations on who buys or sells those products. Billboards advertising such products are up across the state. 

People can smoke or vape those hemp products, and they look and smell just like marijuana. 

There’s also THC-A, which stands for tetrahydrocannabinolic acid, which is a naturally occurring chemical abundant in cannabis that is sold in stores as flowers and pre-rolled cigarettes. Heat, however, changes its chemical composition into delta-9-THC through a process called decarboxylation. 

If you light up a THC-A hemp cigarette or leave it in the car under the hot sun, you could suddenly possess marijuana, said Rod Kight, an internationally known lawyer who represents the hemp industry. 

The SBI warned in its memo that it would be “impossible for law enforcement to use the appearance of marijuana or the odor of marijuana to develop probable cause for arrest, seizure of the item, or probable cause for a search warrant.” Even the paraphernalia for both look the same, the memo said. 

Only a chemical test could distinguish the two. But the State Crime Lab doesn’t use such a test, and law-enforcement agencies have no field test that can easily identify marijuana. In some cases, items might be sent to a private lab. Nazneen Ahmed, a spokeswoman for the N.C. Department of Justice, said the State Crime Lab can test for the presence of THC but not the quantity. Nor can it identify whether a cigarette, for example, contains marijuana or hemp. 

Ahmed said the testing equipment that could make such a determination is expensive, and the General Assembly has not provided funding for it. 

Bob Crumley, an attorney who founded a hemp company, said law-enforcement leaders have opposed legalizing hemp because it destroys their ability to use look and smell as a reason to search someone’s property.  

“They want to be able to do pretextual stops,” he said. “If they see what they think is a cannabis bud or something of that nature, they want to search the car and figure out what they can find without getting a warrant.” 

NC Cannabis Laws: What to Know About Hemp, Marijuana

North Carolina’s legal system has yet to recognize the paradigm shift that hemp legalization has created, experts say.

Despite hemp’s legalization, officers still routinely use look and smell to justify searches, and a lab test isn’t required for prosecution, said Phil Dixon, a professor at UNC School of Government. Hemp has changed things. 

“The officer’s opinion that ‘I think it’s marijuana’ no longer carries the reliability it did pre-hemp,” he said. “And neither does a lab report that says we found THC.” 

The SBI’s warning went unheeded.  

Smoke and Mirrors

On November 13, 2023, Christine Pierre and Anthony Lee were sitting at a Charlotte bus station. They had recently moved to the city from New York to start a new life. 

The couple, who are both Black, had just gotten off from work at Bojangles when an officer with the Charlotte-Mecklenburg Police Department approached. “It smells like you’re smoking weed,” the officer was recorded saying in body-camera footage. Pierre and Lee said it wasn’t marijuana—they had bought a THC-A cigarette, a legal hemp product, from a nearby smoke shop. 

The officer started placing Lee under arrest, and Pierre protested. The confrontation escalated quickly as more officers became involved; footage from police body cameras and cellphones show Officer Vincent Pistone striking Pierre in the face and trying to punch her a second time when she swung at him. Then, as at least four officers held her down, Pistone punched her in the leg 17 times. 

Both were charged with marijuana possession and resisting arrest. Pierre was also charged with assault on an officer, while Lee was charged with carrying a concealed weapon because a gun was found in a backpack. 

The Mecklenburg District Attorney’s Office later dropped all the charges, and Pistone was suspended for 40 hours and ordered to get additional training. An internal investigation concluded that the first three of the 17 times Pistone hit Pierre were “justified” and the others weren’t. The investigation cleared six other officers who were involved. 

Chief Johnny Jennings defended the officers’ arrest of the couple for alleged marijuana possession. 

“As long as marijuana is illegal, I will expect my officers to address open marijuana use and marijuana sales,” Jennings said.

The Charlotte-Mecklenburg Police Department has maintained that stance, despite a recent recommendation from an advisory committee that officers stop investigating and arresting people for marijuana possession. 

Race plays a significant factor in who gets searched and who doesn’t. A 2020 study by New York University professors found that Black drivers were 20 percent more likely to be stopped by police than white people, and Black drivers were 1.5 to 2 times more likely to be searched. 

Mirroring an earlier study, the ACLU reported in 2020 that racial disparities have persisted even as more states decriminalize marijuana. Nationwide, Black people were 3.64 times more likely to be arrested for marijuana possession. Montana, Kentucky, West Virginia, and Illinois had the highest racial disparities, the report said. 

Elizabeth Simpson, an attorney for Emancipate NC, wrote in a brief for the case involving Tyron Dobson that racism has played a part in how the country deals with marijuana. The drug became “associated with white hippies, Latin American immigrants, and Black people” in the 1960s and ’70s, she wrote, and while North Carolina reduced the penalties for possessing small amounts of marijuana in 1977, the drug has remained illegal amid the national War on Drugs. 

Natacha Andrews, executive director of the National Association of Black Cannabis Lawyers, said the use of smell as probable cause is arbitrary. An officer conducting a traffic stop not only can’t smell the difference between marijuana and hemp, she said, but also can’t know whether someone bought a product legally in a place where it’s allowed. Twenty-four states and Washington, D.C., now allow recreational marijuana use, while another 17 states allow only medicinal use. Within North Carolina, the Eastern Band of Cherokee Indians is opening its first legal dispensary later this month.

Efforts in North Carolina to legalize marijuana have failed. A bill for medical marijuana made it through the Senate last year but died in the House of Representatives. But similar legislation is not likely to come up in the General Assembly’s short session that starts April 24. It’s not clear whether state legislators will revive any efforts to ban smokable hemp or propose additional regulations on the hemp industry. 

This murky status has also affected legal hemp businesses like Greensboro’s Essential Hemp. On September 14, 2021, police officers raided the store on Elm Street and seized more than $30,000 of delta-8 and delta-10 hemp products. The store had only been open three months, said owner Kattya Castellon. 

“They robbed us,” she said. “They just took the products.”

A few weeks later, Greensboro police arrested and charged Hector Sanchez, Castellon’s partner who was then also the store’s co-owner, with possession of a Schedule VI controlled substance, possession with intent to sell/distribute a controlled substance, and maintaining a dwelling for the purposes of keeping controlled substances. 

Police said an undercover officer had bought hemp products at their store and alleged that lab results showed the products had more than 0.3 percent delta-9-THC, the legal limit in North Carolina. Castellon said police never gave her or Sanchez a copy of the lab tests, even though she hired a civil attorney to try to obtain them. The charges were dropped a few months later.  

They never got back most of the hemp products police seized. The only thing that was returned were two boxes of edibles that had since expired. 

The kicker, Castellon said, was that the paperwork described the edibles as “marijuana products.” 

“If they were marijuana products, why would they return them to us?” she said. “It doesn’t make sense.” 

Clear as Vodka

So far, North Carolina’s appellate courts have upheld the status quo—that is, that the smell of marijuana is sufficient probable cause for warrantless search and seizure. 

In some cases, courts have avoided the issue altogether by ruling that officers considered other factors—nervousness, evasiveness, or a defendant’s own admission—not just odor. 

Law-enforcement agencies and prosecutors in different parts of the state have taken varying approaches to low-level drug offenses. The elected district attorneys in Mecklenburg and Durham counties, for example, don’t prosecute low-level drug cases at all, including possession. 

Raleigh, Durham, and Charlotte-Mecklenburg police departments declined to make anyone available for an interview about how they handle the odor issue. Anjanette Grube, a spokeswoman for the SBI, declined to comment on whether the agency maintained the concerns it expressed in its memo.

The N.C. Attorney General’s Office has argued that the smell of marijuana is sufficient probable cause. (The AG’s office declined comment due to pending litigation.) In the Schiene case, Special Deputy Attorney General Scott Stroud argued that Buie had reason to search the vehicle because he was trained to detect marijuana, as was the other reporting officer. 

“Defendant can point to no federal or state authority that finds an officer must be able to distinguish between the smell of marijuana and the smell of hemp to support a basis for probable cause to conduct a warrantless search of a vehicle, and therefore his argument fails,” Stroud wrote in a brief.

In response, Schiene’s attorney quoted from the 1995 film The Usual Suspects: “The greatest trick the devil ever pulled was convincing the world that he didn’t exist.” 

State prosecutors, Kull said, want to do the same thing in “convincing the judiciary that the legislature never legalized hemp, such that the consequences of that legislative choice—consequences that the State itself once predicted—do not now exist.” 

At the February 21 hearing, Court of Appeals Judge Hunter Murphy picked up a glass of water. If he took it to his car after court was over, he mused, police could stop him and not know whether he had water, vodka, or something in between. 

Special Deputy Attorney General Zachary Dunn pointed out that an officer could easily smell alcohol. 

“Looking at a clear glass with clear liquid is very different than looking at a green, leafy substance that smells like something that has been illegal in North Carolina for dozens and dozens and dozens of years,” Dunn said.

That left Murphy confused: “Isn’t the SBI memo basically saying it is the same because there is no way to tell a legal product from an illegal product?”

Dunn said the way the courts have previously ruled, the smell of cannabis, whether it’s hemp or marijuana, is enough for an officer to conduct a search. This prompted another question from Murphy. 

“Is there any other legal product in this entire state where there is an ability to do that for?” 

“Standing up here, your honor, I can’t think of one,” Dunn replied. 

Michael Hewlett is a staff reporter at The Assembly. He was previously the legal affairs reporter at the Winston-Salem Journal. You can reach him at michael@theassemblync.com.