It has been a while since my last post on cannabis and criminal law issues, and it is past time for an update. In addition to a number of state cases grappling with search and seizure issues surrounding cannabis, there have been recent developments in the area on the federal and tribal levels. Today’s post will focus on search and seizure issues in marijuana prosecutions. Part II will cover drug identification issues and other recent issues affecting the state of cannabis law.
Sight and Odor of Cannabis = Reasonable Suspicion. In the recent case of State v. George, COA22-958, ___ N.C. App. ___; ___ S.E.2d ___ (Mar. 5, 2024), the Court of Appeals concluded that the officer’s smell of suspected marijuana combined with the sight of suspected marijuana residue on the floor of the car provided reasonable suspicion, justifying the officer’s extension of the traffic stop to investigate the potential drug offense. In addition to the suspected sight and odor of marijuana, the defendant refused to make eye contact with the officer and was “shaking very nervously.”
This outcome is unsurprising to me. Assuming arguendo that the sight or odor of what appears to be marijuana is no longer probable cause without some additional facts, reasonable suspicion is an even lower standard — “a minimal level of objective justification, something more than an unparticularized hunch.” George Slip op. at 9 (internal citation omitted). Given the low bar for reasonable suspicion, it seemed likely that the sight or odor of cannabis would be treated by courts as a sufficient basis on which to briefly detain a suspect or to extend a traffic stop in order to investigate the potential criminal activity. According to the George court, indeed it does. Of course, reasonable suspicion is always a question of the totality of the circumstances and defenders might try and distinguish the facts of a case involving the sight or odor of marijuana from the facts in George. The result could be different where the defendant did not exhibit signs of extreme nervousness, or where the defendant makes an affirmative claim that the source of the odor is hemp. That said, George is a strong indication that the smell or sight of suspected marijuana—even a mistaken one—will still amount to reasonable suspicion, and defenders should be ready for the State to make that argument. The defendant in George did not challenge the reliability of the subsequent canine alert or its weight in the probable cause to search analysis on appeal, but other recent cases have delved into those issues, as discussed below.
Canine Sniffs Unchanged? Jeff discussed the legal impact of hemp on canine sniffs and probable cause when the animal is trained to detect THC here and here. He noted that some North Carolina cases were arguably applying a “sniff plus” test, whereby a canine alert plus other suspicious circumstances combined to create probable cause justifying a search. See, e.g., State v. Walters, 286 N.C. App. 746 (2022) (canine alert plus knowledge that defendant had outstanding drug warrants and had recently possessed meth was probable cause to search). The Court of Appeals seemingly rejected this “sniff plus” approach in the recent case of State v. Guerrero, ___ N.C. App. ___; 897 S.E.2d 534 (Feb 6, 2024). Citing pre-hemp precedent, the majority held: “A positive alert for drugs by a specially trained drug dog gives probable cause to search the area or item where the dog alerts. The legalization of hemp does not alter this well-established principle.” Guerrero Slip op. at 7 (cleaned up).
Despite the pronouncement from the court about the impact of hemp legalization on canine sniffs and probable cause, there may be an argument that the statement is dicta. Looking at the totality of the circumstances in Guerrero, there was a tip from a confidential informant that the defendant had just left the home of a known heroin dealer in addition to the positive canine alert. Like in Walters, the officers in Guerrero were not looking for marijuana. Instead, they suspected the defendant of possessing other drugs on which the canine was trained to alert (here, heroin; in Walters, meth), and which were ultimately recovered from the vehicles. The dog’s inability to distinguish hemp from marijuana was therefore not central to either case, a point that the Guerrero court emphasized. While the dog was trained to detect both THC and heroin, any argument that the sniff should not amount to probable cause was—like in Walters—simply not relevant to the facts of the case on these facts.
There may still be challenges to be made regarding canine alerts by dogs trained to detect cannabis, but Guerrero and Walters seem to set a high bar. A case involving suspected marijuana where only suspected marijuana is found would present different facts and could conceivably result in a different outcome, but so far it does not seem that the appellate division is biting on the argument that canine sniffs by animals trained to detect THC should be treated any differently in the age of legal hemp. To the extent a challenge to the probative value of canine alerts in this context are still possible, I suspect that a defendant would need to come forward with affirmative evidence demonstrating why a canine sniff by an animal trained to detect THC is no longer reliable.
Odor Plus? Outside the context of canine alerts, the issue of probable cause to search for and seize suspected marijuana based on the sight or odor of cannabis continues to percolate through the court system without a clear answer. According to some decisions, “the legalization of hemp has no bearing on our Fourth Amendment jurisprudence.” Guerrero Slip op. at 8 (citing to State v. Teague, 286 N.C. App. 160 (2022) and State v. Johnson, 288 N.C. App. 441 (2023)).
That kind of language about the issue is difficult to square with cases like State v. Parker, 277 N.C. App. 531 (2021), where the court expressly declined to decide the issue of whether the odor of marijuana standing alone remains probable cause (and where the court applied an odor plus standard to resolve the case). This “odor plus” approach, where something more than the mere sight or odor of suspected marijuana is required (at least when it is a human doing the seeing or smelling), was on display in the recent case of State v. Springs, ___ N.C. App. ___; 897 S.E.2d 30 (Jan. 16, 2024). There, the officer smelled suspected marijuana during a traffic stop and asked the defendant about it. The defendant denied having smoked anything in the car but volunteered that his friend recently had the car and could have been the source of the smell. The defendant and his bag were searched, leading to drug charges. The trial court granted the defendant’s motion to suppress, finding that “odor plus” was the correct standard under Parker and that the officer lacked the “plus” on these facts. The State appealed, and the Court of Appeals reversed without ultimately deciding the odor issue. In the words of the court:
… [A]s in Parker, the Officer had several reasons in addition to the odor of marijuana to support probable cause to search the vehicle and, consequently, the Crown Royal bag. As such, again, we need not determine whether the scent or visual identification of marijuana alone remains sufficient to grant an officer probable cause to search. Springs Slip op. at 13 (internal citation omitted).
Among the other facts identified by the Springs court beyond the odor of cannabis were the defendant’s nervousness, his admission that marijuana had potentially been smoked in the car earlier by his friend, the fact that the defendant was driving with a fictitious tag and with an invalid license. Thus, despite some sweeping language about the legalization of hemp having no effect on search and seizure law, the issue is still being litigated and appears to very much still be a live issue. See, e.g., Springs Slip op. at 18, n. 1 (Murphy, J., dissenting) (acknowledging that the issue of probable cause based on the odor of marijuana remains undecided). Remember that Springs was a state’s appeal from the trial court’s grant of the defendant’s motion to suppress. That said, my sense is that any “plus” required in the analysis is often not a high bar for the State. An admission that marijuana was or might have been smoked in the car seems to be enough, and some opinions have indicated that it is the defendant’s burden to claim the sight or odor of cannabis is from legal hemp. See, e.g., Springs Slip op. at 14 (“Defendant made no assertion at the time the odor derived from legalized hemp.”). So long as the issue remains unsettled, though, defenders should continue raising, litigating, and preserving the issue for appeal.
Readers, are you seeing successful motions to suppress where the probable cause is based on a canine alert or the sight or odor of cannabis? I can always be reached with questions, comments, or concerns at dixon@sog.unc.edu. Stay tuned for Part II!