A North Carolina Appeals Court judge is asking the state’s highest court to clarify an issue that has cropped up multiple times in recent appellate cases. Defendants are challenging law enforcement searches of cars and suspects based on the smell of marijuana.
Defense attorneys have argued that officers cannot distinguish between the odor of illegal marijuana and legal hemp.
Judge John Arrowood issued a plea to the North Carolina Supreme Court in a concurring opinion released Tuesday.
Arrowood and two colleagues affirmed the Forsyth County concealed weapon conviction of Terrel Dawayne Rowdy. That conviction was based on a July 2020 vehicle stop. Forsyth County sheriff’s deputies had searched Rowdy and his car after detecting the smell of marijuana.
“I concur in the outcome of this case as bound by our precedent. … but write separately to highlight the need for the Supreme Court to clarify this issue,” Arrowood wrote in his two-page concurrence.
“As the majority correctly notes, this Court has addressed whether the perceived odor of marijuana is sufficient to constitute probable cause,” Arrowood added, citing two earlier Appeals Court rulings this year. He listed other recent cases tied to law enforcement officers’ detection of a marijuana odor.
“We are bound by these opinions in like circumstances where a law enforcement officer detects the odor of marijuana, the possessor does not claim that the odor came from legal hemp, and the odorous substance was in fact marijuana,” Arrowood wrote. “However, as the SBI memo cautions, legal hemp and illegal marijuana have become increasingly difficult to distinguish between, in detecting by odor or testing for chemical composition.”
“In light of these challenges and questions that have occurred since the changes in the law regarding hemp, I respectfully suggest that this issue presents an emerging issue that is ripe for our Supreme Court to address to assist in clarifying for courts and law enforcement in light of the new legal landscape after the legislation pertaining to hemp,” he concluded.
Judge April Wood’s majority decision also noted state courts’ recent dealings with the issue of marijuana and hemp odor.
“More recently, in State v. Guerrero, this Court explained ‘our case law made it clear the legalization of hemp has no bearing on our Fourth Amendment jurisprudence,’” Wood wrote. “There, this Court … stated, ‘[t]he smell of marijuana “alone … supports a determination of probable cause, even if some use of industrial hemp products is legal under North Carolina law. This is because only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.”’”
“Moreover, ‘we have repeatedly applied precedent established before the legalization of hemp, even while acknowledging the difficulties in distinguishing hemp and marijuana in situ.’” Wood added. “This Court, again, addressed a similar issue in Little, when an officer immediately smelled a strong odor of marijuana in the defendant’s vehicle after conducting a traffic stop and observed marijuana residue on the floorboard of the vehicle. The Court in Little stated, ‘[t]he issue is not whether the substance was marijuana or even whether the officer had a high degree of certainty that it was marijuana,’ rather, the issue is ‘whether the discovery under the circumstances would warrant a man of reasonable caution in believing that an offense has been committed or is in the process of being committed, and that the object is incriminating to the accused.’ In any event, ‘the odor and sight of what the officers reasonably believed to be marijuana gave them probable cause for the search.’”
“Thus, consistent with this Court’s holdings, we follow well-established precedent,” Wood wrote. “Despite the alleged, indistinguishable similarities between illegal marijuana and legal hemp, the odor or smell of marijuana ‘would warrant a man of reasonable caution’ to believe that the substance is of an incriminating nature. That belief, based on smell or appearance, provides grounds for probable cause. Thus, the odor of marijuana, alone, is sufficient to establish probable cause to search a vehicle.”
North Carolina legalized hemp in September 2015 with the Industrial Hemp Act, originally Senate Bill 313. Later state legislation dealt with the issue of smokable hemp.
A North Carolina Appeals Court judge is asking the state’s highest court to clarify an issue that has cropped up multiple times in recent appellate cases. Defendants are challenging law enforcement searches of cars and suspects based on the smell of marijuana. Read More