The Smell of Marijuana* alone may no longer be Probable Cause in North Carolina

Posted by Sean P. CecilMay 19, 202111 Comments

Cops Love to use the "Odor of Marijuana" to Search Homes and Vehicles

North Carolina courts have long held that the odor of marijuana* detected by a law enforcement officer is sufficient to establish probable cause. The courts have ratified a police officer's ability to recognize the odor of pot based upon their training and experience, and thus opened the door to thousands of searches and petty arrests per year.

Hemp or Marijuana? Cops can't tell.

Of course, the courts don't often get to hear about the cases where the cop searches based on the alleged odor of cannabis but find none.Courts have upheld smell-based searches that recovered guns or other drugs but no cannabis, but rarely if ever hear about the cases where cops searched but find no contraband. As we in the criminal defense community are fond of saying, in the context of the 4th Amendment protections against unreasonable searches and seizures, "Protect the rights of the guilty to ensure the rights of the innocent."

Failed Policy of Cannabis Prohibition is Almost Over

The establishment of probable cause and the continued trampling of the 4th Amendment based upon the seemingly-ubiquitous (among people of color) odor of cannabis is almost over. More states are legalizing cannabis every year, and there is now a solid movement to legalize cannabis on the federal level. Also, hemp is legal nationally, and in the State of North Carolina- even the State Bureau of Investigation has declared that there is no way for officers to distinguish between hemp and marijuana in the field. Notably, in a memo the SBI submitted to the legislature after the legalization of hemp, the agency admitted there is no way to distinguish the smell or appearance of cannabis and legal hemp, whether burned or unburnt. Even the state crime lab is unable to perform the necessary quantitative testing to establish the difference. Prosecutors must send the suspected hippie lettuce to a private lab to prove to a court that what they are dealing with is not legal.

Cops can't Distinguish Between Hemp and Cannabis but the System has been in Denial

Who knows what excuses cops will have to find to search vehicles they just *know* contain contraband? Well, for now, the smell of marijuana continues to be sufficient, when combined with other factors that indicate illegality. Even though North Carolina state law enforcement admits there is no way to distinguish between the smell or appearance of hemp and cannabis, cops all over the state continue to search homes, cars, and people based upon the "odor of marijuana" they recognize based upon their "training and experience." Of course, for misdemeanor possession charges not supported by a lab analysis, this categorically should not be enough to support a conviction (the standard is "beyond reasonable doubt".) However, for some reason cops still file the charges, prosecutors still proceed with them, and amazingly defense attorneys still plead their clients guilty. I have not had a single cannabis-related conviction in district court for over two years. Hire me. But I digress.

Odor Alone may not suffice to establish Probable Cause to Search or Arrest

Today the North Carolina Court of Appeals affirmed a superior court judge's ruling that denied a defendant's motion to suppress evidence that was discovered after a "probable cause" search of a car based upon the odor of marijuana*. In State v. Parker 2021-NCCOA-217, the cop asked occupants of the car (stopped for a seat belt violation) whether there was pot in the car because he smelled burnt marijuana*. The cop told them that he smelled burnt marijuana and that they should give it to him and he would only issue a citation and they could go on their way.  The passenger pulled a half-burnt joint out of his sock and gave it to the cop. The cops then asked both car occupants to get out of the car so he could search it, demonstrating yet again why cooperating with an investigation and waiving rights doesn't usually play out in a suspect's favor. In addition to the passenger's likely-to-be-construed-as admission to possessing marijuana* the cop also observed that the suspect was "fidgety" and "nervous" during the search. Who wouldn't be?

The Court addressed various issues at some length (including whether the issue had properly been preserved at trial - it had- and whether the judge's failure to issue a written order regarding the motion was fatal to her ruling- it was not) before what should probably have been the central issue: did the cops have probable cause to search the vehicle based upon the odor of marijuana*? The Court of Appeals took great pains to make it clear that they "accord great deference" to the trial court's ruling on a motion to suppress...and then noted that the United States and North Carolina constitutions both prohibit unreasonable searches and a warrant is required unless a warrant exception applies, and that in the vehicle context a warrantless search is proper if probable cause exists- defined rather clunkily as:

"A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man (!) in believing the accused to be guilty."

The Defendant relied upon the SBI memo linked above to argue that the officer lacked sufficient probable cause, and argued that the odor of marijuana* was insufficient to support a reasonable belief that the car contained contraband because the odor of hemp and marijuana* are indistinguishable. The Court did take a good look at the SBI memo and noted many of the assertions contained therein that would seemingly cause problems for an officer asserting probable cause based upon odor or appearance of marijuana*. The Court noted the "possibility" that past holdings supporting probable cause based upon odor "may need to be re-examined," noting that

"If the scent of marijuana no longer conclusively indicates the presence of an illegal drug (given that legal hemp and illegal marijuana apparently smell the same), then the scent of marijuana may be insufficient to show probable cause to perform a search. Likewise, if the sight of marijuana no longer conclusively identifies the presence of an illegal drug (given that legal hemp plants and illegal marijuana plants look identical), then a police officer may not be able to rely on a visual identification of marijuana alone to support probable cause."

Putting these seemingly dispositive revelations aside, however, the Court went on to announce that they need not determine whether scent or visual identification of marijuana alone remains sufficient to establish probable cause to search a car. Instead, the court looked at the admissions from the passenger, as well as the passenger's provision of a half-smoked joint in response to questions. The Court ruled that the three factors combined were certainly enough to form probable cause. Thus, although the legality of hemp in relationship to the establishment of probable cause for possession of marijuana continues to be a live issue, the courts have basically come down on an odor+ analysis. I would expect moving forward, that courts are going to require (and probably bend over backwards to find) other factors (bloodshot eyes, telltale Cheetos crumbs?) to find that probable cause exists under a totality of circumstances analysis.

Don't Waive Your Rights, Ask for an Attorney

Parker highlights the importance of clinging to your rights during a police investigation. I always advise my clients to do so politely and respectfully, because although your legal rights may protect you in a courtroom setting, a streetside investigation is a long way from a courtroom. It is, generally speaking, a good approach to ask an officer if you are being detained. If the answer is no, then leave. If the answer is yes (and an investigative detention can be upheld on the barest of suspicions) then politely inform the officer that you would like to speak to your attorney before waiving any rights. This includes answering *any* questions or responding to a request to search. In this case, when the cop asked if there was marijuana in the car, neither one of the occupants should have volunteered anything. A legitimate response would be to assert a desire to consult an attorney prior to answering any questions. While it's true that occassionally cops on the street may take offense at such an assertion, and sometimes do what they can to make it harder, it is pretty clear that absent the admission from the car occupant, and handing over the half-smoked joint to the cop, the Court of Appeals analysis would have been much different. 

Call an experienced North Carolina Marijuana Lawyer

The issue of legality of hemp and its relationship to ongoing cannabis prohibition is a live one. In another case pending before the Court of Appeals, the defendant had an expert witness testify about the issues addressed in the SBI memo. Perhaps the analysis will change with the force of that expert testimony. But for now, it appears that the state of the law in North Carolina is that odor+ is the analysis for establishing probable cause. Make sure if you are facing a cannabis-related crime, you retain an experienced North Carolina marijuana* lawyer who is familiar with all of the issues relating to searches, seizures, and proof beyond a reasonable doubt. And don't waive your important rights to remain silent! Sean Cecil is an experienced marijuana lawyer and a member of NORML. We offer free consultations regarding criminal matters and can be reached by calling 919-828-1456 x5 (leave a message if no one answers!) or by filling out the contact form on this webpage.

*We consider the term "marijuana" to be racist and inaccurate, and prefer to use "cannabis" but the law is still obviously far behind on this issue.