Author’s Note: The Court of Appeals withdrew the decision on which this post is based on August 30, 2024.
The Court of Appeals recently settled an issue that has been unresolved in the state for several years: In light of legal hemp, does the sight or odor of cannabis still provide probable cause to justify a search or arrest? Hemp and marijuana—both varieties of the cannabis plant—are indistinguishable by sight or smell. Since State v. Parker, 277 N.C. App. 531 (2021), the Court of Appeals has wrestled with the issue. Parker and subsequent cases repeatedly declined to decide the question, holding instead that officers had probable cause under the facts of each case based on the officer’s observation of suspected marijuana “plus” additional incriminating circumstances. Some trial courts had sometimes granted motions to suppress when the probable cause was based solely or primarily on the odor or sight of cannabis. See, e.g., State v. Springs, 292 N.C. App. 207 (2024) (reversing the trial court’s grant of motion to suppress). It seems we finally have an answer. According to In Re: J.B.P., No. COA23-269, ___ N.C. App. ___ (Aug. 6, 2024), the sight or smell of cannabis, standing alone, provides an officer with probable cause to believe marijuana may be found, just as it did before the advent of legal hemp. This post discusses the implications of the J.B.P. case and offers thoughts on defending marijuana prosecutions in its wake. Read on for the details.
Facts. A Beaufort County deputy was driving past a known drug house when he smelled the odor of cannabis near a car parked in front of the home. According to the officer, he had recently completed a “hemp training program” where he learned to distinguish hemp from marijuana by smell, and he believed that the odor here was marijuana. He called for backup, another officer responded, and the two officers began watching the car. They saw a juvenile exit the house, enter the parked car, and drive away. The car came back to the home a short time later, and promptly left again. The officers then stopped the car. They smelled a strong odor of what they believed to be marijuana both inside the car and on the juvenile and saw what they believed to be marijuana in the floorboard of the car. A search of the car led to the discovery of a gun, a digital scale, and around 14 grams of apparent marijuana. A delinquency petition was later filed accusing the juvenile of felony possession with intent to sell or deliver marijuana and misdemeanor carrying a concealed weapon.
The juvenile moved to suppress, arguing that the officers lacked probable cause to search his car. The trial court took judicial notice of the SBI memo discussing hemp and marijuana and ruled for the juvenile, concluding that the officers did not have probable cause to believe the source of the odor was marijuana, as opposed to hemp. The trial court specifically found that the officers’ testimony about their ability to distinguish hemp from marijuana was not credible. The State appealed, and a unanimous panel of the Court of Appeals reversed.
Holding. According to the Court of Appeals, there was a reasonable probability that the source of the odor was marijuana. Even if that belief was wrong and the source of the smell could have been hemp, probable cause still existed, because probable cause only requires a “probability of guilt, not absolute proof of guilt.” In re: J.B.P. Slip op. at 7. The court observed that even innocent behavior will frequently meet that standard. Id. The court assumed without deciding that hemp and marijuana are indistinguishable by sight or smell but found that the similarity simply did not matter. Because there was a “reasonable probability” that the officers would find marijuana, the search complied with the Fourth Amendment. Id. at 9. The trial court was therefore reversed.
It is possible that the juvenile in J.B.P. could seek en banc review by the full Court of Appeals (a power the court has had since 2016 but which it has never exercised) or review by the North Carolina Supreme Court. If that happens, you can be sure to read about it here, but for now, J.B.P. is the law of the land. What does that mean moving forward?
No More Odor Plus. While earlier cases applied an “odor plus” test as the ostensible standard for suppression issues involving the smell of cannabis, there were hints that the court was leaning against adopting that standard. Several decisions opined that, “the legalization of hemp has no bearing on our Fourth Amendment jurisprudence.” See, e.g., State v. Guerrero, ___ N.C. App. ___; 897 S.E.2d 534, 538 (2024). The same decisions often emphasized that probable cause is a low bar, requiring only a reasonable likelihood that a crime has been committed, and noting probable cause may found notwithstanding possible innocent explanations. See, e.g. State v. Walters, 286 N.C. App. 746 (2022). This is ultimately where the Court of Appeals landed. Under J.B.P., no “plus” is necessary for probable cause to exist based on the sight or odor of cannabis, despite the existence of legal hemp. It does not matter whether an officer is mistaken about a belief that something looks or smells like marijuana, because probable cause is a low bar that requires only a reasonable likelihood of criminal activity.
Odor Minus? Prosecutors are likely to argue that J.B.P. is the end of probable cause challenges based on the odor or sight of cannabis. Is it? For one, the opinion does not address how the analysis might change when there is credible evidence that a substance is in fact hemp and not marijuana. Although not specifically addressed by the court in J.B.P., probable cause is always a question of the totality of the circumstances, and the devil is often in the details. “[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or easily reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983).
Consider hemp retail stores. J.B.P. presumably does not authorize law enforcement to search and seize everything in an establishment selling legal hemp products based on the sight or odor of cannabis, because other facts reduce the likelihood that the substances inside are marijuana. Hemp store proprietors likely have some documentation that their products are legal (such as receipts from distributors and certificates of analysis), and this seems highly relevant to the totality of circumstances for the probable cause analysis. The same is true for hemp farmers, processors, distributors, and (presumably) consumers. When an officer is faced with evidence that the product is more likely legal hemp than illegal marijuana, the calculus may be different. Indeed, the Court of Appeals has implied as much. See State v. Springs, 292 N.C. App. 207, 216 (2024) (“Defendant made no assertion at the time [of the police encounter] that the odor derived from legalized hemp.”)
One can think of this as “odor minus”—when other evidence reduces the probability that an officer is seeing or smelling marijuana, the probative value of the sight or odor may be weakened, and the analysis could change. J.B.P. does not speak to this kind of situation, and we will have to wait and see how the courts apply the rule in other factual contexts. Meanwhile, consumers and others involved in the hemp industry likely have an even stronger interest than before in keeping receipts, packaging, and any other documentation identifying a product as legal close by when in possession of hemp and hemp products.
The SBI Memo. J.B.P. also had something to say about the (in)famous SBI memo on hemp and marijuana products. Not long after North Carolina passed legislation to permanently authorize hemp products in the state, the state law enforcement agency put out the memo to alert legislators to the perceived problems for enforcement of the state’s criminal prohibitions on marijuana caused by hemp’s legalization. The memo notes that legal hemp and illegal marijuana are indistinguishable by sight and smell and opines that officers will no longer have probable cause based on the odor or sight of marijuana as long as smokeable hemp products remain legal. Defenders were quick to use the memo in support of their suppression arguments in cases where the smell or sight of marijuana supplied probable cause.
The SBI’s opinion about probable cause and hemp expressed in the memo was always just that—an opinion from a state law enforcement agency. J.B.P. expressly rejects the idea that the SBI’s opinions on probable cause are entitled to any deference from the judiciary. “[T]he SBI lacks authority to declare that an officer cannot establish probable cause under these circumstances. Whether an officer had probable cause at the time of a search is for the courts to discern.” J.B.P. Slip op. at 9. The court found that the trial court erred in accepting the memo’s legal conclusion regarding probable cause (without specifically addressing its factual content).
I have long cautioned defenders even before the J.B.P. decision not to rely solely on the SBI memo. Trial judges have been inconsistent in accepting the memo as authentic or competent evidence and have different opinions about its weight. The better practice for a defender needing to make the point about hemp and marijuana being indistinguishable is to obtain a defense expert and use their testimony instead. Although J.B.P. does not go so far as to completely neuter any potential evidentiary value of the memo, it rejects the legal conclusions it contains. The State did not challenge the trial court’s decision to take judicial notice of the memo, and it may still have some value in providing background factual context of the issue, explaining the science, or corroborating expert testimony. But J.B.P. should signal to defenders that simply handing up the SBI memo or asking the court to take judicial notice of it may not be enough without an expert of their own.
Other Takeaways for Defenders. Keep in mind that the search in J.B.P. arose in the context of a roadside vehicle search. Under the automobile exception, police do not need a search warrant to search a car when it is capable of readily being moved. State v. Julius, 385 N.C. 331, 339 (2023). In other circumstances, while the odor of cannabis may provide probable cause to search, law enforcement will normally have to get a search warrant. Further, even when a roadside vehicle search is performed pursuant to the automobile exception, again, the specific factual circumstances matter. See, e.g., State v. Malunda, 230 N.C. App. 355 (2013) (holding that the odor of marijuana from the driver side door did not justify the warrantless search of the passenger).
Defenders should also remember that the case deals only with the search and seizure issue. J.B.P. recognizes that the defendant can challenge the identity of the substance on the merits to the factfinder. It may be reasonable for an officer to assume that something looking or smelling like cannabis is marijuana and not hemp (at least absent other evidence) for purposes of probable cause. But that same evidence, on its own, might not rise to the level of proof beyond a reasonable doubt of the drug’s identity at trial. Defenders remain free to argue that the State has not proven the case when prosecutors fail to present reliable evidence of the concentration of delta-9 THC of the suspected marijuana. See G.S. 90-87(13a) and (16).
In that vein, I wrote about evidence challenges in marijuana prosecutions earlier in this post. Suffice it to say that there are numerous potential evidentiary objections a defender can make to evidence identifying something as marijuana, beyond any search and seizure issues. Precedent permitting an officer to offer a lay opinion identifying something as marijuana has not been addressed by our appellate courts since the advent of legal hemp. That rule arguably no longer makes sense, since the substances can be distinguished only by their chemical compositions. In J.B.P. and other cases, officers have testified that they can distinguish hemp from marijuana by visual or olfactory means. See, e.g., State v. Booth, 286 N.C. App. 71, 73 (2022) (officer testified he could smell THC levels and could distinguish hemp from marijuana by sight). This kind of lay opinion evidence often goes unchallenged at trial and any evidentiary challenge to it is then generally waived for appellate review. Besides objecting to any improper testimony (as discussed in the earlier post), defenders should (again) consider retaining an expert on cannabis in any marijuana prosecution, who could offer affirmative evidence to rebut such testimony. If you are in need of an expert in a marijuana case or any other type of case involving forensics, contact Sarah Olson at Indigent Defense Services or check out her database of experts, here.
Expert opinions identifying something as marijuana are also unreliable without a proper lab analysis showing specific levels of delta-9 THC—a test that only private labs currently perform in the state. When there is a proper lab result, there may be issues with how the testing was performed. Assuming an unassailable lab test, the recent Smith v. Arizona decision from the U.S. Supreme Court likely requires that the lab result from the private company be presented in court by the actual analyst(s) involved in the testing and not a substitute analyst, as was commonly allowed pre-Smith (more on Smith here).
Many of these potential challenges to drug opinion evidence are not unique to marijuana cases, but they are particularly relevant in this context. Beyond the Fourth Amendment implications of the J.B.P. decision, the case also serves as a reminder for defendants that a motion to suppress is merely the first challenge to bring in a marijuana case, not the only one. Check out the earlier blog post for more detail on making and preserving those evidence challenges.
I can be reached as always at dixon@sog.unc.edu for any questions or feedback.