Police love to search based on their perception of the "odor of marijuana." These searches have been upheld even when no cannabis is found but other contraband is seized. Since the legalization of industrial hemp and products thereof which can not be distinguished from illegal "marijuana" it has been a bit of an open question whether the smell alone can create the necessary probable cause to justify a search. It has been apparent for a while that courts are unlikely to divest cops of this favorite excuse to get into places where they otherwise would not be allowed. Now they've come out and made it clear. However, prosecutors should still need comprehensive testing to prove the existence of "marijuana" beyond a reasonable doubt to secure a conviction...

Cops can search your car after claiming to smell "marijuana" 

In In re J.B.P. (2024), the North Carolina Court of Appeals addressed a pivotal legal question regarding whether the sight or smell of cannabis alone still provides probable cause for law enforcement searches, despite the legalization of hemp. This case highlights the complexities in distinguishing between hemp, which is legal, and marijuana, which remains illegal in North Carolina, as both plants are visually and olfactorily indistinguishable.

The case involved a juvenile, J.B.P., whose vehicle was stopped and subsequently searched based on an officer detecting the odor and sight of what appeared to be cannabis. The lower court initially ruled in favor of suppressing the evidence, citing that the sight or smell of cannabis alone could not establish probable cause, especially without confirmation that the substance was marijuana rather than legal hemp. However, the Court of Appeals reversed this decision, holding that the sight or odor of cannabis continues to suffice for probable cause under the state's search and seizure laws. This means that, regardless of hemp's legality, an officer's detection of cannabis-related indicators (such as smell or appearance) justifies a search due to the reasonable suspicion it may be marijuana.

The appellate court also addressed a memorandum by the North Carolina State Bureau of Investigation (SBI) advising officers that probable cause could not be established based on smell alone due to the difficulty in differentiating hemp from marijuana. However, the court emphasized that the SBI does not have the legal authority to dictate probable cause standards, which remain under judicial jurisdiction. Therefore, courts, not state agencies, determine probable cause standards based on the totality of circumstances in each specific case.

This decision has sparked debate within the legal and hemp industries. Individuals legally possessing hemp face scrutiny and potential arrest, even when in compliance with the law. Individuals carrying hemp products should retain documentation such as receipts, certificates of analysis, or original packaging , to verify legality if confronted by law enforcement. This case underscores the legal challenges arising from the cannabis-hemp distinction and its implications for individual privacy rights in North Carolina

I have extensive experience in litigating cannabis related criminal issues, including possession, cultivation, and trafficking charges in North Carolina State and Federal courts. I provide free consultations regarding criminal cases. I charge a reasonable flat fee for local marijuana possession cases in Wake County, and can represent or provide a referral for cases elsewhere in North Carolina.