I have been covering developments around the legalization of hemp in North Carolina since 2018. Never did I suspect then that I would still be working on the topic all this time later, but here we are. My last post on In Re: J.B.P. covered the then most recent developments around probable cause and the odor of cannabis. That opinion was withdrawn and has yet to reissue, but subsequent cases have basically affirmed the logic on which the case was decided. This month, the Court of Appeals released State v. Ruffin, COA24-276, ___ N.C. App. ___ (March 5, 2025), weighing in on evidentiary challenges to opinion evidence identifying a substance as marijuana, as well as on jury instructions for marijuana cases. This post examines these and other recent legal developments impacting the state’s criminal cannabis law. Read on for the details.
Search and Seizure
When Can the Police Seize a Cell Phone Incident to Arrest, and How Long Can They Keep It?
Riley v. California, 573 U.S. 373 (2014), holds that the contents of a cell phone may not be searched incident to arrest, but allows for the possibility that the phone itself may be seized incident to arrest. This post addresses when such a seizure is permissible and how long it may last.
Children and Consent Searches
Some time ago, I received an email from a researcher asking whether a minor may consent to the search of his or her cell phone. The question made me realize how little I knew about children’s authority to consent to searches more generally. So I cracked some law books, and wrote this post as a primer for anyone who may be as uninformed as I was.
A Movable Traffic Stop: Relocating the Search and Seizure in State v. Jackson
In State v. Jackson, No. COA23-637 (Oct. 1, 2024), the Court of Appeals considered whether an officer had reasonable suspicion to detain the defendant for trespassing. Mitchell County Sheriff’s deputies responded to a report that a suspicious vehicle had driven up an unpaved, privately-owned logging trail. “Lieutenant Beam, in his four-wheel-drive truck, drove up to the end of the trail, where he found Defendant, a female companion (“Passenger”), and Defendant’s Volkswagen Bug (the “Bug”) covered in mud and dirt.” Jackson, Slip Op. p. 2. The defendant eventually consented to a search of the car, during which officers found methamphetamine. The issue was whether the defendant was unlawfully seized when he gave consent. This post considers the opinion in Jackson.
Recent Developments Concerning Geofence Warrants
Five years ago, I wrote about geofence warrants. I said then that “there are zero cases on Westlaw . . . [and] virtually no secondary source material about these warrants.” Times have changed. Now we have cases, including one from the Fourth Circuit, and lots of secondary source material. This post explains the state of the law on geofence warrants.
Border Searches of Electronic Devices
North Carolina doesn’t have a land border with Mexico or Canada, so most people don’t think of us as a border state. But we are. We have a maritime border and several international airports that courts have deemed the functional equivalent of a border. Fourth Amendment protections are greatly reduced at the border, and United States Customs and Border Protection (CBP), the federal agency responsible for securing the border, reports that in 2023 it conducted border searches of electronic devices belonging to 41,467 travelers. This post considers when law enforcement officers may search an international traveler’s electronic devices.
Police Liability for Damage to Property
Law enforcement officers sometimes damage property in the course of their work. For instance, they may break down a door while executing an arrest warrant, or may pull up floorboards in the course of conducting a search. This post addresses whether police are liable for the damage they cause.
Court of Appeals Holds Sight or Odor of Cannabis = Probable Cause
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.
Fourth Circuit Strongly Suggests Including Temporal Limitations on Search Warrants for Social Media Account Information
Earlier this year, the Fourth Circuit decided United States v. Zelaya-Veliz, 94 F.4th 321 (4th Cir. 2024). Phil summarized it here when it came out, but we thought it merited its own post because of its extended discussion of how the Fourth Amendment applies to search warrants for social media account information. The court’s discussion of the need for temporal limitations in such warrants is especially noteworthy, as is the court’s analysis of the scope of the information seized pursuant to the warrants approved by the court. We’ll start with a recap of the case, and then end with some thoughts for law enforcement and prosecutors, and for defenders.
Updated Content Now Available in the Digital Version of Arrest, Search, and Investigation in North Carolina
Most readers of this blog are familiar with Arrest, Search, and Investigation in North Carolina. For those who are not, it is a treatise on search and seizure law. It covers stops, arrests, warrantless searches, search warrants, and much more. The most recent (sixth) edition was published in 2021 and was authored by long-time School of Government faculty member Robert L. Farb and research attorney Christopher Tyner. However, the law is never static, and the intervening years have seen major developments concerning issues such as digital searches, strip searches, the recording of interrogations, the automobile exception to the warrant requirement, and more. I’ve updated the treatise, and this post details how to access the new content.