The North Carolina Supreme Court recently decided two cases considering the impact of legal cannabis on probable cause. In State v. Dobson, No. 190PA24, ___ N.C. ___; 929 S.E.2d 315 (May 22, 2026), and State v. Rowdy, No. 300PA24, ___ N.C. ___; 929 S.E.2d 324 (May 22, 2026), the Court agreed with the Court of Appeals that officers had probable cause to conduct warrantless searches of the defendants’ cars under the facts of the cases. The unanimous decisions from the Supreme Court emphasize that probable cause depends on the totality of the circumstances and indicate that the odor of cannabis is only a factor in that analysis. While neither case squarely settles the question of whether the odor of cannabis standing alone remains sufficient to establish probable cause in the age of legal hemp, they both cast doubt on the “odor only” reasoning by the Court of Appeals in Rowdy and other cases addressing the issue. Today’s post examines the holdings in Rowdy and Dobson and their implications for marijuana prosecutions moving forward.
The Court of Appeals Decisions. The decisions by the Court of Appeals in Rowdy and Dobson were covered in an earlier 2025 post, but a refresher may be helpful. In Rowdy, the odor of suspected marijuana by officers trained to detect marijuana was the determinative factor for the Court of Appeals in affirming the denial of the defendant’s motions to suppress. State v. Rowdy, 296 N.C. App. 272, 282 (2024) (“The odor of marijuana emanating from the vehicle provided probable cause.”) In Dobson, the odor of suspected marijuana coupled with a cover scent established probable cause, according to the Court of Appeals. State v. Dobson, 293 N.C. App. 450, 456 (2024) (“The detection—by several officers—of the cover scent provides a basis ‘in addition to the odor of marijuana to support probable cause to search the vehicle.’” (emphasis in original) (internal citation omitted). The defendants in both cases sought review at the state high court, arguing that the Court of Appeals erred by failing to conduct a totality-of-the-circumstances analysis and resting their decisions instead on “odor only” in Rowdy’s case and “double odor” (odor plus a cover scent) in Dobson’s.
The Supreme Court Decisions. In both Rowdy and Dobson, the Supreme Court seemingly took a more nuanced approach. In Dobson, the Court pointed to several factors beyond the odor of cannabis and cover scent in support of a finding of probable cause. One of the passengers in the car had prior convictions for possession with intent to distribute cocaine and marijuana. The defendant himself had pending felony charges for possession of firearm by felon and assault with a deadly weapon with intent to kill inflicting serious injury, in addition to an earlier, unnamed felony conviction. These circumstances, coupled with two experienced officers’ suspicions of drug offenses based on the odor of burnt cannabis and cover scent during a lawful stop for speeding, supplied probable cause under the totality of the circumstances. According to the Court:
[T]he traffic violation, the odor of burnt marijuana, the freshly applied cover scent independently detected by two experienced officers, the drug-distribution criminal history of [a passenger], and Mr. Dobson’s felony record and pending violent felony and firearm charges . . . collectively provided the officers with a fair probability that contraband or criminal activity would be found in the [car]. State v. Dobson, No. 300PA24, ___ N.C. ___; 929 S.E. 2d 315, 323 (May 22, 2026).
Notably, the Court discounted the presence of a firearm on the dashboard that was legally possessed by the driver in its analysis—a point to which we will return below. While Dobson expressly declined to decide whether odor only or odor plus a cover scent was sufficient for probable cause without more, the Court’s analysis suggests an implicit rejection of the State’s argument in favor of such an interpretation. “Today we hold that under federal Fourth Amendment doctrine, we continue to follow our precedents which require examination of the ‘totality of the circumstances’ to determine whether probable cause exists to conduct a warrantless search. In that evaluation, the odor of cannabis is one factor that may be considered.” Dobson Slip op. at 3 (internal citations omitted). The Court therefore affirmed the decision of the Court of Appeals.
Rowdy likewise does not purport to settle the odor-only question, but its reasoning is another indication that the issue of probable cause based on the odor of cannabis is not as simple as a per se rule. “The odor of marijuana is one factor in this case, but it is not the only factor that gave officers reason to search Mr. Rowdy’s person and automobile.” State v. Rowdy, No. 300PA24, ___ N.C. ___; 929 S.E.2d 324, 331 (May 22, 2026). Here, numerous other factors supported the warrantless search of the defendant’s car. Rowdy did not immediately stop his vehicle when blue-lighted for a traffic violation. Instead, he drove on to the parking lot of an apartment building and only stopped then. That building was known to officers as a high crime area and one where narcotics activity was common. Officers learned during the stop that the defendant had prior convictions for a drug offense and carrying a concealed weapon. When officers attempted to question him during the stop, the defendant “bladed away” from the officers, stayed on the phone and ignored their questions. Following a frisk that led to the discovery of a “blunt,” an officer told the defendant that he had discovered marijuana. The defendant made no claim that the substance was instead legal hemp and did not otherwise contest that categorization. According to the Court, these factors coupled with the odor of cannabis amply supplied probable cause. To the extent that the Court of Appeals applied a per se rule that the odor of cannabis alone was sufficient, the Supreme Court modified the Court of Appeals’ decision to be “consistent with the rule articulated in this opinion to apply a totality of the circumstances test for probable cause . . .” Id. at 17. The decision of the Court of Appeals was therefore affirmed as modified.
Thoughts and Takeaways. It is interesting that the Supreme Court in Rowdy affirmed the decision of the Court of Appeals as modified to emphasize the totality of circumstances test for probable cause, while it simply affirmed the Dobson decision without modification (despite both opinions reiterating the totality of circumstances test). So, where does that leave us?
The decisions may seem like a return to the early days of motions to suppress based on the ambiguity around hemp and marijuana. Regular readers will remember the first decision from the Court of Appeals examining whether the scent of marijuana still provides probable cause for a search. In State v. Parker, 277 N.C. App. 531 (2021), the Court of Appeals acknowledged the potential issue but declined to decide it, instead finding that officers had more than just the odor of cannabis to support a search of the vehicle in that case. Here, too, the North Carolina Supreme Court shelved that question for another day.
Still, Rowdy and Dobson seem to cast doubt on the line of decisions from the Court of Appeals holding, in effect, that nothing changed with the legalization of hemp and that the odor of cannabis alone remains probable cause without more. See, e.g., State v. Little, 295 N.C. App. 541 (2024); In Re: J.B.P., 299 N.C. App. 640 (2025). That said, to the extent that the decisions imply a return to the “odor plus” days, my sense is that any “plus” does not require much. Consider that in Dobson, the additional factors beyond the odor of cannabis supporting a finding of probable cause (traffic violation, felony record and pending, non-drug charges of the defendant, and felony drug record of a passenger) arguably have little relationship to suspicion of marijuana possession or other drug crime. While the factors cited in support of a finding of probable cause in Rowdy seem stronger, my suspicion is that the odor of cannabis will continue being accepted as a major factor in the totality of the circumstances analysis (at least absent evidence that the substance is hemp and not marijuana).
In that vein, I speculated about “odor minus” in an earlier post. What happens when an officer is confronted with credible evidence that the suspected marijuana is actually legal hemp? In that situation, applying a totality of circumstances test, the calculus may weigh against a finding of probable cause. What exactly counts as credible evidence sufficient to rebut an officer’s suspicions that a substance is marijuana remains to be seen, but both Dobson and Rowdy seem to support that possibility. Consider that the Court in Dobson discounted the presence of a handgun on the dashboard in the analysis once it was fairly clear that the gun was lawfully possessed. “[W]here information known to officers at the time of the stop affirmatively negates an inference of reasonable suspicion, that inference is dispelled and may not be counted in favor of probable cause.” Dobson Slip op. at 14.
Presumably the same would be true when officers are faced with a convincing claim that something is hemp and not marijuana. What if an officer asks about the odor of marijuana during a traffic stop and the driver immediately claims that the smell is from hemp? What if the driver also turns over a package of cannabis professionally labeled as hemp and a receipt from a hemp store? We do not have that case yet, but it will be interesting to see how a plausible claim that a substance is hemp factors into the analysis. Keep in mind, though, the totality of circumstances analysis cuts both ways—where other factors weigh in favor of probable cause, an otherwise credible claim that a substance is hemp may not defeat other facts. When suspicion is primarily based on the odor of cannabis, though, a credible claim that something is hemp may dispel the suspicion.
A final word about the Court’s reliance on the criminal history of the vehicle’s occupants as a factor supporting probable cause to search. At least under precedent from the Court of Appeals, the timing of prior criminal offenses matters as part of the totality of circumstances. “When evidence of previous criminal activity is advanced to support a finding of probable cause, a further examination must be made to determine if the evidence of the prior activity is stale.” State v. Oates, 224 N.C. App. 634, 646 (2012) (citing State v. McCoy, 100 N.C. App. 574, 577 (1990)). That further examination typically includes the magnitude and duration of the earlier criminal activity. Id. at 646-47. Other than the reference to Mr. Dobson’s pending felony offense, the Rowdy and Dobson opinions do not mention the age of the prior convictions. While the criminal history of the vehicles’ occupants in these cases was only one factor among others, defenders should be prepared to argue that older charges or convictions are stale and should not weigh heavily (or at all) in the totality of circumstances calculus in the appropriate case.
More to Come! These decisions are also unlikely to be the last word on the subject from the state high court. As mentioned above, a third case, State v. Scheine, No. 305PA24, remains undecided. That case may provide the Court an opportunity to more squarely address the impact of legal hemp in the probable cause determination. If so, you can be sure to read about it here.
If you have any questions, comments, or other feedback, I can always be reached at dixon@sog.unc.edu.
