Odor in the Court

Two trained narcotics investigators with the Beaufort County Sheriff’s Office made a scientifically dubious claim before a judge in October 2022: that they could smell the difference between legal hemp and illegal marijuana. 

Officer Jason Cleary told the judge that marijuana has a “very distinct strong smell” and that hemp is “not as pungent and strong as marijuana.” Lt. Russell Davenport testified that he had attended a “marijuana spotter school” and that he had the training and experience to know marijuana when he smelled it. 

Experts agree, however, that hemp and marijuana smell exactly the same, and no human or even canine could sniff out the difference. But whether officers can use a smell test to justify searching someone’s vehicle, person, or property has led to numerous legal challenges that have made their way through North Carolina’s appellate courts. 

In the 2022 case, the two officers had surveilled a suspected drug house. Davenport said he smelled marijuana as he passed by a car parked out front. When the driver left, Cleary conducted a traffic stop. Behind the wheel was a teenager, referred to as J.B.P. in court documents because he is a minor. Cleary also said he smelled marijuana, which the officers used as probable cause to search the vehicle. 

They seized purported marijuana, a digital scale, and a handgun. The officers had no field test to definitively identify the substance; even the State Crime Lab doesn’t have the testing capability to distinguish between hemp and marijuana. J.B.P. filed a pretrial suppression motion, arguing his constitutional rights against unreasonable search and seizure had been violated. The judge granted the motion after the October 2022 hearing and dismissed all of the charges. Prosecutors appealed to the North Carolina Court of Appeals. 

A three-judge appellate panel unanimously overturned the ruling, concluding that probable cause is such a low legal standard that it doesn’t matter whether what the teenager possessed was legal hemp or illegal marijuna. 

“The question is not whether an officer can discern the difference between illegal marijuana or legal hemp, but rather, based on training and experience, whether the officer reasonably believes he or she smells marijuana,” the panel ruled. 

State legislators legalized hemp growing in 2019 to fall in line with federal law and permanently declassified hemp as a controlled substance in 2022. Since then, hemp has become a multimillion dollar business in North Carolina. 

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

But law enforcement officers still use odor alone as probable cause, even though, as one attorney arguing last year before the Court of Appeals said, the “smell of marijuana” no longer legally exists. And state appellate courts have, so far, allowed law enforcement officers to continue using the justification for a search. 

In some cases–including J.B.P.’s– the Court of Appeals has maintained that odor alone is sufficient. In other cases, the court has said there was other evidence that led officers to believe illegal activity might be occurring. 

And in all of those cases, the appellate court has ruled that probable cause is such a low legal standard that an officer simply believing that they smell marijuana, regardless of how possible that actually is, is reason enough. 

On September 9, the state Supreme Court will hear oral arguments in three different cases—State v. Schiene, State v. Dobson and State v. Rowdy—centered on the question of whether odor can still be considered probable cause.

No Field Test

Hemp and marijuana come from the same plant species, Cannabis sativa. The main difference is marijuana can get you high. Hemp can’t. 

That’s because the psychoactive ingredient in marijuana is delta-9-tetrahydrocannabinol, or THC. 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. But then things get complicated. 

Hemp-infused products such as delta-8 and delta-10 contain different cannabinoids that have similar psychoactive effects as marijuana. But they’re legal, and North Carolina has few regulations on who buys or sells them. Drive along the state’s main highways, and you’ll likely come across multiple billboards advertising such products. People can smoke, vape, eat, or drink hemp products, and they look and smell just like marijuana. In early June, Gov. Josh Stein announced the creation of an advisory council to look at ways to regulate these products and keep them from children. 

Then there’s THC-A, a naturally occurring chemical abundant in cannabis and sold in stores as flowers and prerolled cigarettes. When heated, its chemical composition can essentially change into marijuana. 

The only way to distinguish between marijuana and hemp is through a chemical analysis. However, the State Crime Lab doesn’t have the kind of testing that could easily determine whether a law enforcement officer seized marijuana or hemp. And local law enforcement agencies have no field test that can do the same. 

The State Crime Lab can only test for the presence of THC, not the quantity. Nazneen Ahmed, a spokeswoman for the N.C. Department of Justice, has said that while the testing equipment that could make such a determination exists, it is expensive, and the General Assembly has not provided funding to acquire it. 

Rod Kight, an internationally known lawyer who represents the hemp industry, said before hemp was legalized, tests didn’t have to be accurate. Finding the presence of THC was sufficient. 

“But in the advent of the legalization of hemp, which now in North Carolina we’re going on for 10 years, the fact that the state crime labs have not changed to a different metric is absurd,” he said. 

Legal experts have said the current legal landscape is ripe for violating people’s constitutional rights against unreasonable search and seizure.

Morgan Davis, a Raleigh attorney who specializes in cannabis law, said recent Court of Appeals rulings have placed North Carolina in a unique position: State legislators have legalized a popular product that is indistinguishable in sight and smell from marijuana, an illegal product. Yet, the courts still allow law enforcement officers to use the odor of alleged marijuana as probable cause. 

And that unnecessarily exposes many of her clients to the criminal justice system, she said. Those clients then have to hire attorneys, attend court hearings, miss work, and rearrange daycare for their children in order to properly defend themselves. And they face the risk of going to prison if they’re found guilty. 

“You’re taking what is otherwise a lawful substance and still allowing it to be the determining factor as to whether or not someone’s constitutional rights are overridden by law enforcement priorities,” Davis said. “And it’s a completely legal substance. That’s mind-boggling.” 

‘Ignoring a Fire Alarm’

Prior evidence suggests that the North Carolina attorney general would agree with that assessment. When Jeff Jackson ran for the U.S. Senate before dropping out in 2021, he called for ending the federal prohibition of cannabis. 

In a video, he noted that Virginia had decriminalized marijuana. “What’s about to become a cash crop for Virginia farmers can still get you prison time in North Carolina,” he said. 

That, Jackson argued, didn’t make sense. Jackson also mentioned stark racial disparities in marijuana arrests. People of color are three times more likely to get arrested for marijuana use than white people, Jackson said. 

“You cannot have a full conversation about racial justice without addressing the racial patterns of enforcement that we’ve seen with marijuana laws,” he said. 

But the state attorney general’s office, which Jackson has led since January, has repeatedly defended using the odor of alleged marijuana as probable cause in searches. 

Benjamin Kull represents Cody Schiene and Tyrone Dobson, two defendants whose cases go before the state Supreme Court this month. In court documents, Kull noted the apparent contradiction in Dobson’s case. (Kull declined a request for an interview.) 

State prosecutors have argued that Greensboro police officers had probable cause to search the car Dobson was in not just because of the alleged odor of marijuana but also because officers smelled cologne. Law enforcement officers have argued in other cases that people will use cologne or another fragrance to cover up the smell of marijuana. 

“Cases like Mr. Dobson’s now present the Attorney General with a concrete opportunity to ‘do [something] on his end,’” Kull writes. 

Nazneen Ahmed, a spokeswoman for Jackson’s office, said she could not comment because of the pending litigation. 

The N.C. Conference of District Attorneys, the North Carolina Association of Chiefs of Police, and the North Carolina Sheriffs’ Association jointly filed an amicus brief in Dobson’s case. Attorney Robert Montgomery wrote on their behalf that to accept Dobson’s argument would mean “officers likely could never search an automobile based on marijuana odor and could never obtain a search warrant for a residence based on marijuana odor—even if other facts supporting probable cause were present.” 

Montgomery also said that marijuana odor indicates the presence of marijuana while conceding that marijuana and hemp smell the same.

“Although legalization of hemp now means the presence of marijuana does not make it a lock that the odorous substance is marijuana, probable cause nevertheless still requires only probability,” he said. 

Montgomery argues that smokable hemp “remains a niche market” and that when officers think they smell marijuana, they’re probably right. 

“Indeed, failing to investigate a marijuana odor further simply because there could be an innocent explanation would be like a building manager ignoring a fire alarm simply because it could have been triggered by someone burning a popcorn in a breakroom microwave.” 

Kull said that argument would allow law enforcement to “indefinitely detain people against their will and to conduct exhaustive, comprehensive searches of all their personal belongings as well as every nook and cranny within their vehicles—even if, in theory, that means tearing out the seat cushions.”

Charge Dismissed

In at least one recent case, a woman’s attempt to prove she had purchased legal hemp still resulted in her car being searched and with her being criminally charged with marijuana possession.

Dominique Prather, then a student at North Carolina A&T State University, and a friend had just bought two grams of hemp from a store in Greenville on June 14, 2024, when a police officer pulled them over for a burned-out headlight. 

Officer Addison Fitzgerald, who had finished his training in February 2024, said he would let Prather go with a warning but then asked her if she had been smoking, according to a federal lawsuit she filed in late July. She told Fitzgerald that she had bought hemp and offered to show him a receipt in her phone. He declined but repeatedly told her he believed her, the lawsuit said. 

Still, he called additional officers to search Prather and her car. They seized the two grams of hemp, and Fitzgerald cited her for misdemeanor possession of marijuana. The dispensary had likely sold her illegal marijuana, he told her, which is why she was being cited. (The incident was captured on the officer’s body camera.)

Jaelyn Miller, a staff attorney with the advocacy group Emancipate NC, filed the lawsuit on Prather’s behalf. Conducting a search and then charging someone for buying what they had every reason to believe was a legal product makes no sense, Miller said. 

“You cannot say to someone who legally purchased something that, ‘Hey, you did everything right, but what you didn’t know is they’re doing everything wrong, and so I’m going to take it out on you,’ right?” Miller said. 

The lawsuit is pending, and Greenville city officials declined to comment. Emancipate NC started a “Don’t Plead to Weed” campaign precisely because of cases such as Prather’s, Miller said. More than 30,000 people are charged with marijuana-related crimes every year, the nonprofit said. 

Miller said she filed the lawsuit in federal court because she is skeptical that the state appellate courts will rule in a way that guarantees people’s constitutional rights aren’t violated. 

Prather’s charges were dismissed once the prosecutor saw the bodycam footage, but it came at a cost, Miller said. Prather had never been in trouble with the law before, and she had to travel for court hearings, not knowing whether this would all result in a conviction. While it was pending, Prather worried whether this would affect her ability to secure housing or obtain a job. 

“In her mind, she was following the rules,” Miller said.