In Part I of my Spring 2024 cannabis update, I discussed the search and seizure issues arising in North Carolina courts around cannabis. Part II explores drug identification evidence issues surrounding marijuana prosecutions and examines potential challenges defenders might raise. This post will also cover recent developments on the state, federal, and tribal levels impacting cannabis.
Lay Opinions Identifying Marijuana. Under precedent pre-dating the legalization of hemp, a trained officer’s lay opinion that a substance is marijuana based on its sight or smell is sufficient to prove the identity of the substance. State v. Fletcher, 92 N.C. App. 50 (1988). Since the advent of legal hemp, there are many legal, hemp or hemp-based products that cannot be distinguished from marijuana by sight or smell. See State v. Highsmith, 285 N.C. App. 198 (Aug. 16, 2022) at n. 1 (noting the similarity in appearance and odor of hemp and marijuana). To reliably distinguish between the two substances, a lab test quantifying the levels of delta-9 THC must be performed—a test neither the State Crime Lab nor any law enforcement lab in the state currently performs. As a result, defenders have been arguing that the Fletcher visual identification rule no longer makes sense. We have not yet seen a case analyzing the admissibility of an opinion identifying a substance as marijuana without this kind of chemical analysis in the age of hemp, and the issue remains a live one. At least some out-of-state jurisdictions have begun requiring the State to prove delta-9 THC concentrations in marijuana prosecutions. See, e.g., Fritz v. State, 223 N.E.3d 265 (2023) (finding evidence insufficient to prove the substance was marijuana without a chemical analysis showing delta-9 THC levels). When an officer offers a lay opinion that a substance is marijuana, defenders should object that this is not the proper subject of a lay opinion and move to exclude it. Since the identity of any alleged marijuana depends on its exact chemical composition, a lay witness cannot have personal knowledge of that composition without a chemical analysis, and such testimony is presumably not helpful to the factfinder in determining the identity of the substance under R. Evid. 701.
Expert Opinions Identifying Marijuana. What if the officer is qualified as an expert and wants to offer a similar opinion that something is marijuana? Again, absent a proper chemical analysis detailing the levels of delta-9 THC, such opinion arguably fails the requirements of N. C. R. Evid. 702. Because the opinion is speculative without a proper chemical analysis, it is presumably not based on sufficient facts or data and cannot not be the product of reliable methods under Rule 702. Defenders should raise the Rule 701 or 702 challenges (or both, as needed) to any opinion evidence identifying something as marijuana without a proper chemical analysis. It may be helpful to file a pretrial motion in limine on the point to obtain a ruling before testimony is presented to the finder of fact.
Lab Reports Identifying a Substance as Marijuana. Sometimes the State produces a lab report in cases involving suspected marijuana that purports to identify a substance as marijuana, but the report fails to quantify specific levels of delta-9 THC. These reports may or may not disclose the fact that the testing did not distinguish between legal hemp and illegal marijuana on their face. A test that fails to distinguish hemp from marijuana presumably does not meet the standards for admission into evidence under Rule 702. Since the test detects only the presence of delta-9 THC and not its concentration, the report generated from the test results is arguably not based on sufficient facts or data and is not the product of reliable principles or methods.
In all three of the situations discussed above, defenders should be prepared to make evidentiary challenges to the improper opinion or lab evidence and seek to exclude them from trial. If those challenges are overruled, defenders must object on the same evidentiary grounds at trial to preserve the issue for appeal. Note that the same questions going to the admissibility of such evidence can be used to attack the weight of that evidence at trial, should it be admitted over objection. Recall too that the issue is one of admissibility and not sufficiency of the evidence. It is incumbent on defenders to object to unreliable identification evidence during trial, because even improperly admitted identification evidence will be sufficient to withstand a motion to dismiss. An objection to the admission of such improper identification evidence is necessary to preserve the issue for appellate review, as I have previously discussed here. State v. Osborne, 372 N.C. 619 (2019).
In some jurisdictions within the state, for some cases, the State will get a proper chemical analysis done, one that ostensibly distinguishes hemp from marijuana by measuring the concentration of delta-9 THC. This testing is done exclusively by private labs. If defenders encounter a lab result from a private entity that purports to measure delta-9 THC levels, they should retain their own expert to examine the lab report or consult with Forensic Resource Counsel Sarah Olson. Depending on the specific testing methods used, the test results still might be subject to exclusion or attack on other reliability grounds.
Substitute Analysts in Marijuana Cases. Even if the testing methods and results are unassailable, there is one additional argument defenders should consider. When a private lab conducts the testing of suspected cannabis, my anecdotal sense is that the testing may be performed by more than one person, and the testing analyst (or analysts) may not be produced for trial. Instead, the lab may send a supervisor or other substitute expert in lieu of whomever performed the testing to admit their opinion based on the lab report. When the State is relying on this kind of “substitute analyst” testimony, defenders should make a Confrontation Clause objection under the Sixth Amendment. While state law currently admits substitute analyst testimony liberally, that practice could soon be struck down or seriously curtailed by the U.S. Supreme Court, as I have previously discussed in detail here.
Federal Reclassification? As this story notes, the Food and Drug Administration (“FDA”) recently concluded a study on potential reclassification of marijuana on the federal level. Marijuana is currently classified as a Schedule I drug under federal law. Schedule I drugs are considered the most dangerous, having a high likelihood of abuse and dependency with no accepted medical value. The FDA review noted that marijuana use does not produce the kinds of negative health outcomes associated with other Schedule I drugs like heroin, despite marijuana being much more readily available. It also noted scientific evidence in support of certain medicinal uses of the drug. Under the new proposed classification, marijuana would be moved to Schedule III. Among other things, this reclassification would ease research restrictions on studying the drug. The Drug Enforcement Administration will ultimately make the call after an administrative process that includes the opportunity for public comments on the matter.
Recreational Marijuana Comes to the Qualla Boundary. The Eastern Band of Cherokee Indians voted to legalized recreational marijuana for adults last Fall. As Danny Spiegel noted in a recent News Roundup, the first legal marijuana dispensary within the borders of North Carolina opens to the public on April 20, 2024 (the date is not a coincidence, as this N&O article notes). Any adult 21 or older will be permitted to legally purchase marijuana within the Qualla Boundary on or after that date. Before considering a trip to make a purchase, though, residents should know that non-Indians visiting the Boundary are still subject to state criminal law and that non-tribal state and local law enforcement have exclusive jurisdiction in the area over non-Indians (as Shea Denning succinctly described here). A non-Indian who purchases marijuana from a legal dispensary there will immediately be in violation of the state criminal prohibition on possession of marijuana and may be charged by non-tribal law enforcement authorities accordingly.
Hemp Products Remain Unregulated. When it comes to legal hemp products, North Carolina continues to lack any state regulation beyond the .3% limit on delta-9 THC. Federal regulation and enforcement of existing FDA regulations are also minimal. While some hemp stores have occasionally encountered issues with law enforcement over alleged trademark infringement or for having products that test over the legal limit, the unregulated market seems to generally be on the rise across the state. At least with so-called “hot” products—those over the legal limit of delta-9 THC—retailers who have been charged have sometimes successfully asserted a lack of knowledge defense, as we have discussed in other posts. See State v. Perez, 55 N.C. App. 92 (1981) (while the defendant’s knowledge of the identity of a controlled substance is presumed, the State is required to prove the element when the defendant introduces evidence of his or her lack of knowledge).
A veritable alphabet soup of cannabinoids, including intoxicating cannabinoids, are prevalent throughout the marketplace within the state and beyond. Under current state and federal law, there is no age limit for the use, possession, or sale of hemp and hemp products. There are also no restrictions on where it can be used or possessed, no amount limits, and no standardized health or quality assurance protections in place. My sense is that there is support within the multi-billion-dollar national hemp industry for greater regulation on age limits, accurate labeling, and other quality assurance measures. Beyond those broad, basic protections, advocates for the industry and regulators can have very different views on what the rules should look like on the ground. We will have to wait and see what, if any, regulations North Carolina ultimately adopts.
Readers, how are cannabis issues being litigated in your neck of the woods? What has been your experience with hemp and marijuana enforcement in the state? Are there issues you are seeing that I’ve missed here? Email me at dixon@sog.unc.edu with any questions, comments, or other feedback.