The North Carolina Court of Appeals has upheld a defendant’s firearm and habitual felon convictions in a Mecklenburg County case after rejecting arguments linked to the similar odor of marijuana and legal hemp.
Codie Bruce Scheine argued on appeal that Charlotte-Mecklenburg Police Sgt. William Buie and a fellow officer had no legitimate probable cause to search his vehicle in a hotel parking lot in September 2020. The vehicle search produced the gun that led to Scheine’s later convictions.
Buie “detected an odor of unburned marijuana” while approaching the vehicle, according to the Appeals Court majority decision issued Tuesday. Scheine’s lawyer argued that the odor was not sufficient to prompt a police search.
“Defendant’s argument is based upon the purported similarities between legal hemp and illegal marijuana, particularly the asserted indistinguishable odor when identifying the two substances,” according to the unsigned Appeals Court opinion.
Appellate judges noted that the odor was not the only factor that drew police to the vehicle. “First, the location of Defendant’s vehicle within the parking lot and the manner it was parked and positioned could indicate illegal activity, particularly at night,” according to the court opinion. “Defendant’s car was positioned to provide a quick escape, was distant from most other vehicles in the far corner of the side overflow parking lot, and the occupants had a full view of anyone, including police, who approached.”
While police officers had probable cause that extended beyond their sense of smell, the Appeals Court went on to address “The Validity of the ‘Odor Alone’ Doctrine.”
Scheine’s lawyer argued that “following the advent of legalized hemp,” “the so-called ‘odor alone’ doctrine is no longer valid.” The defendant challenged a 1980 state Appeals Court precedent, State v. Greenwood.
“In Greenwood, this Court mentioned two factors for concluding the odor of marijuana gives rise to probable cause for a warrantless search: (1) evidence properly established that the officer believed she smelled marijuana; and, (2) evidence properly established the officer in question was qualified to identify marijuana by its ‘distinct odor’ alone,” appellate judges wrote.
The state Supreme Court reviewed the Greenwood decision in 1981.
“Defendant contends the Supreme Court in Greenwood made a ‘passing reference’ to this Court’s decision regarding the ‘odor alone’ issue, and since the issue was never adjudicated, it is not binding authority,” the Scheine opinion explained. “Defendant argues the Supreme Court’s holding in Greenwood was based upon the understanding law enforcement officers, with sufficient expertise, could reliably detect the distinct odor of marijuana, but this is no longer true.”
“Defendant maintains odor alone cannot justify probable cause, because even if Sgt. Buie had smelled what could have been unburned marijuana, it could have just as easily been unburned hemp,” appellate judges added.
“Defendant’s argument that odor alone cannot justify probable cause is not rooted in any federal or state authority, as no binding authority has upheld any such argument,” the opinion continued. “This Court has repeatedly held ‘[w]hen an officer detects the odor of marijuana emanating from a vehicle, probable cause exists for a warrantless search of the vehicle for marijuana.’”
“It can hardly be true that our Supreme Court only made a ‘passing reference’ in Greenwood regarding the ‘odor alone’ issue, as it explicitly stated that this Court ‘correctly concluded that the smell of marijuana gave the officer probable cause to search the automobile for the contraband drug.’ It is clear our Supreme Court agrees the odor of marijuana is sufficient for probable cause,” appellate judges added.
“This holding is also consistent with multiple federal courts in North Carolina, who also examined the impact of the legalization of industrial hemp and the determination of probable cause,” the Scheine opinion continued.
Judges John Tyson and April Wood supported the unsigned opinion. Judge Hunter Murphy agreed with the case’s result but wrote a separate opinion.
“Though not considered by the Majority, the trial court made unchallenged, binding findings of fact that law enforcement located Defendant’s vehicle in the lot of a hotel ‘known to be high in violent crime, drug crime, and prostitution’ and that ‘[t]he manner in which the [vehicle] was parked combined with the high crime nature of the area and the late hour prompted [Sergeant] Buie to make the decision to approach the car[,]’ at which time he detected the odor of marijuana emanating from Defendant’s vehicle,” Murphy wrote.
“I am bound by the jurisprudential maypole throughout our caselaw that a ‘high crime area’ is a legitimate factor in determining probable cause and not just a legal fiction created to subject the poor and urban areas of our state to an unequal application of the Fourth Amendment,” Murphy added.
“[W]hen considering the totality of the circumstances in this case, including the high crime area, I would hold the trial court did not err in denying Defendant’s motion to suppress,” Murphy wrote. “As such, I reluctantly concur in result only.”
The North Carolina Court of Appeals has upheld a defendant’s firearm and habitual felon convictions in a Mecklenburg County case after rejecting arguments linked to the similar odor of marijuana and legal hemp. Read More