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 That opinion was withdrawn and has yet to reissue, but subsequent cases have basically affirmed the logic on which the case was decided.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.
Odor of Cannabis = Probable Cause. Several readers have contacted me about the In Re: J.B.P. opinion, wondering where things stand with the odor of cannabis and probable cause in light of the court withdrawing that opinion. While a new opinion in J.B.P. has yet to be released, other cases have affirmed its basic premise that the odor of cannabis remains probable cause to search, seize, or arrest, even if a human is unable to smell the difference between legal hemp and illegal marijuana. See, e.g., State v. Dobson, 293 N.C. App. 450, 454 (April 16, 2024) (“[T]he legalization of hemp did not eliminate the significance of ‘the odor of marijuana’ for purposes of a motion to suppress.”); State v. Little, COA23-410, 905 S.E.2d 907, 917 (Sept. 3, 2024) (“[T]he odor and sight of what the officers reasonably believed to be marijuana gave them probable cause to search.”); State v. Rowdy, COA24-64, 907 S.E.2d 460, 469 (Oct. 15, 2024) (“[T]he odor of marijuana, alone, is sufficient to establish probable cause to search a vehicle.”).
There are petitions for discretionary review pending at the North Carolina Supreme Court in Little and Rowdy (as well as other cases with the same issue), so it is possible the high court will want to weigh in on this question. Meanwhile, the Court of Appeals has determined that the odor of cannabis, standing alone, remains probable cause, just as it was prior to the legalization of hemp. That said, probable cause is always a question of the totality of circumstances, and different facts, such as credible evidence that a substance is in fact hemp and not marijuana, might lead to a different outcome (as I discussed in greater detail in the J.B.P. post).
Lay Opinion Identifying a Substance as Marijuana. While the probable cause issue has been percolating through the appellate division for some time, only recently did the Court of Appeals address opinion evidence identifying a substance as marijuana in a published opinion. In State v. Ruffin, COA24-276___ N.C. App. ___ (March 5, 2025), a detective testified that a substance sold by the defendant “appeared to be marijuana.” The detective also acknowledged that there is a difference between hemp and marijuana and that he did not understand the difference between the two during cross-examination. See Appellant’s Br. 5. The defendant did not object to this lay opinion purporting to identify the substance as marijuana but asked the Court of Appeals to consider whether the admission of this testimony amounted to plain error. Citing multiple cases pre-dating the legalization of hemp, the court rejected this argument. “Consistent with our caselaw, this identification was properly admitted because Detective Harrell is a law enforcement officer with proper training and experience in narcotics.” Ruffin Slip op. at 8. Not only did the admission of this testimony not amount to plain error, it was not error at all. The court rejected the argument that more was required under State v. Ward, 364 N.C. 144 (2010), which generally requires a scientifically valid chemical analysis to identify controlled substances. Noting that Ward limited its holding to N.C. Evid. R. 702, the court found Ward inapplicable to lay opinions offered under N.C. Evid. R. 701. Thus, the Ruffin court seems to indicate that the standards for the admission of a lay opinion identifying something as marijuana remain unchanged in the age of legal hemp.
Expert Opinion Identifying a Substance as Marijuana. Ruffin also addressed the propriety of an expert opinion identifying a substance as marijuana without a reliable chemical analysis. The suspected marijuana in Ruffin was sent to the N.C. Crime Lab. The lab only tests for the presence of delta-9 THC and does not determine the specific levels of THC, leaving its analysts unable to scientifically distinguish hemp from marijuana. The analyst in Ruffin testified candidly on this point, identifying the substance only as belonging to the cannabis genus and containing some undetermined level of THC. The analyst admitted on cross-examination that she could not distinguish legal hemp from illegal marijuana and acknowledged that the substance at issue could be hemp. As with the officer’s lay opinion, the defense did not object to this testimony. On appeal, the defendant again complained that the admission of this testimony was plain error as an unreliable and unscientific expert opinion in violation of N.C. Evid. R. 702. Once again, the court rejected this argument. The court first noted that under existing precedent (again, pre-dating the legalization of hemp), no chemical analysis of marijuana was required at all. Examining the specific testimony given about the chemical analysis that was performed in the case, the court determined that it remained a reliable method of identifying marijuana—even though the analyst’s opinion did actually not go that far. According to the court:
[The analyst] testified that she tested evidence submitted by the State in accordance with the procedures for identifying marijuana in use by the Crime Lab at the time. Those procedures included weighing the material, a macroscopic test, a preliminary test, a microscopic exam, and a confirmatory test. Based on that testing, [the analyst] concluded that the plant material was cannabis containing THC, ‘concentration of cannabinoid not determined.’ This Court has consistently approved of similar procedures in our caselaw. Thus, the expert testimony identifying the plant material as marijuana was sufficiently reliable under Rule of Evidence 702. Ruffin Slip op. at 12-13.
Here, too, the court’s holding seems to indicate that nothing about the legalization of hemp changed the evidentiary standards for an expert opinion identifying something as marijuana.
Jury Instructions for Marijuana Cases. Ruffin addressed jury instructions in a modern marijuana case as well. The defendant asked for and received a modification to the pattern jury instruction that the jury be informed that hemp and hemp products are not marijuana under state law. Once the court agreed to that instruction, the defendant agreed to the proposed jury instructions without objection. On appeal, the defendant argued plain error once more based on the trial court’s failure to define hemp in the instructions. Specifically, the defendant argued that the jury should have been informed that hemp is cannabis with a concentration of no more than than 0.3% delta-9 THC, while marijuana has a concentration of delta-9 THC exceeding that limit. The court declined to find that this amounted to plain error. Other challenges to the sufficiency of the evidence and to the sentencing hearing were likewise rejected, and the judgment of the trial court was affirmed in all respects.
Takeaways for Defenders. Much like with the probable cause issue, the Ruffin court’s rulings on the evidence points discussed above indicate that nothing about the existence of legal hemp affected the pre-hemp case law permitting lay and expert opinion identifying something as marijuana without an accurate scientific analysis. Read broadly, Ruffin indicates that future evidentiary challenges to marijuana identification evidence may be an uphill battle for defenders. On the other hand, read narrowly, Ruffin could be cabined to a holding simply stating that the admission of these opinions was not plain error on the facts of the case. Under the latter interpretation, the statement by the court that admission of the lay opinion was not error at all is dicta, as is its statement that a lab report which fails to distinguish hemp from marijuana is a reliable identification of marijuana. For defenders, it is probably worth continuing to object to this kind of testimony as unhelpful to the jury (for the lay opinion) and unreliable (as to the expert opinion). It is possible that if a better trial record was developed, the evidence issues were objected-to and preserved, and a more defendant-friendly standard of review was applied on appeal, the result could be different. A defender could voir dire the State’s expert or present expert testimony of their own at a pretrial hearing challenging the admission of this kind of testimony at trial and build an evidentiary record supporting the defense contention that these opinions are neither helpful nor reliable. If presenting such an evidentiary challenge, defenders should request that the trial court issue a written order with detailed findings to memorialize the court’s ruling. Even if witness is permitted to offer an identification opinion at trial, a defender might request for the opinions to be limited like those offered in Ruffin—that the plant material “appeared to be marijuana” and that the plant material was determined to be “cannabis, THC level undetermined,” as opposed to more direct identifications of the substance as marijuana. Further, as I’ve noted before, the same questions that would be used to challenge the admissibility of this kind of evidence also go to the weight that the jury should afford it. Even if an evidentiary challenge is unsuccessful, the defendant remains free to argue to the jury that the testimony should not be believed.
As far as the jury instruction issue, defenders should take note of Ruffin and request modifications to the pattern instruction in marijuana cases. “If a request is made for jury instructions which is correct in itself and supported by the evidence, the trial court must give the instruction at least in substance.” State v. Harvell, 334 N.C. 356 (1993) (citation omitted). The pattern instruction for marijuana trafficking offenses acknowledges the hemp issue in a footnote (see, e.g. N.C.P.I. – Crim. 260.17 at n.1), but the same notation is missing from the pattern instruction on simple possession (N.C.P.I. – Crim. 260.10) and on possession with intent to manufacture/sell/deliver marijuana (N.C.P.I. – Crim. 260.15) (among others).
Like the defendant in Ruffin, defenders will want a jury instruction noting that hemp and hemp products are excepted from the definition of marijuana. While the Ruffin court held it was not plain error for the trial court to fail to include definitions of hemp and marijuana referencing their respective delta-9 THC levels, such a request up front at the trial court level would seemingly be an accurate statement of law, supported by the evidence, and helpful to the jury’s determination of the facts. If so, the defendant would be entitled to that additional modification to the pattern instruction as well.
Hemp Regulations Coming? The General Assembly is once again considering imposing rules on the largely unregulated hemp industry in North Carolina. A bill is making its way through the Senate that would create labeling requirements, quality assurance controls, age limits for hemp and hemp products, concentration limits for certain hemp-derived intoxicating cannabinoids, advertising rules, and more. S.B. 265 would also create several new class A1 misdemeanor offenses for certain violations of the Act. The bill was apparently crafted with substantial hemp industry input and support, with at least one industry commentator calling it a “model bill” for other states seeking to regulate the field. If the bill becomes law, you can be sure to read more about it here.
Readers, is the result in Ruffin consistent with what you are seeing at the trial level? Do you have thoughts on the opinion, or on the proposed hemp bill? The comments function of the blog has been turned on for this post, so share your thoughts if you like, or email me directly with any questions. I can always be reached at dixon@sog.unc.edu.