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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.

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Spring 2024 Cannabis Update (Part II)

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.

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Spring 2024 Cannabis Update (Part I)

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.

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The Effect of Legal Hemp on Drug Dog Sniffs (Part II)

Last week, in Part I of this series, I discussed whether having a drug dog sniff a vehicle is a search if the drug dog might alert upon smelling hemp, a substance that is legal to possess. Today’s post focuses on what may be an even more significant question: if a dog alerts, does the alert provide probable cause to search?

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The Effect of Legal Hemp on Drug Dog Sniffs (Part I)

Hemp and hemp products are now legal under state and federal law. Hemp is the same plant as marijuana and contains the same chemical compounds, though in different concentrations. Could a drug dog trained to detect marijuana alert on legal hemp? If so, does that impact whether a dog sniff is a search under the Fourth Amendment? And does it mean that a drug dog’s alert no longer provides probable cause to search a vehicle? This two-part series tackles those questions.

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Fall 2022 Cannabis Update

It has not been long since my last cannabis update, but there are some interesting new developments to report, most notably on drug identification and marijuana. Read on for the details.

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Summer 2022 Cannabis Update

It’s been nearly a year since I’ve written about cannabis issues in the state. Many of the issues I’ve discussed here before remain unresolved, but there has been recent legislation and a new case impacting this area. This post examines the current state of the law on hemp and marijuana.

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Delta-8 THC (and beyond)

Cannabis news abounds: Virginia legalized recreational marijuana for adults 21 and up this year; our General Assembly has been considering a medicinal marijuana bill (S.B. 711); the Court of Appeals recently acknowledged (but did not decide) that precedent on the odor of marijuana as probable cause and on visual identification of the substance “may need to be re-examined” in light of legal hemp. State v. Parker, ___ N.C. App. ___, 860 S.E.2d 21, 29 (2021) (more on those issues here). I will write about the still-evolving issues with marijuana prosecutions in the state again soon. Today, though, I want to focus delta-8 THC. What is it? Is it legal? If so, how? Turns out the first question is simpler than the rest.

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Summer 2020 Hemp Update

On Thursday, June 4, 2020, the North Carolina General Assembly passed S.B. 315, referred to as the State Farm Bill, which was subsequently signed into law by the Governor. The bill was pending all last session and stalled, allegedly over a dispute about how to treat smokable hemp. As I understand it, the bill originally intended to clarify that hemp in all forms (including smokable hemp) was legal (here is an earlier version of the bill taking that approach). After hearing objections from law enforcement and prosecutors (as detailed in the SBI memo on the subject), the proposed bill was changed to ban smokable hemp and regulate the rest of the hemp industry in a variety of ways. When the bill was last being discussed in the news, the dispute at the General Assembly had apparently narrowed to when the smokable hemp ban was to kick in. But, the bill never passed last session, and we were without a Farm Bill until this month. So, what big changes does the bill have in store for hemp in North Carolina?

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Carts, Wax, and Oh, My: The New World of Marijuana Extracts

The advent of cannabis legalization across the country has led to a proliferation of new types of cannabis products. There are skin patches, food and drinks (for humans and pets), vaporizer or “vape” cartridges (or “carts”), and different concentrate or extract products (“dabs”, “wax” or “shatter”, among other names). [Click that last link and scroll down to see a chart listing the different forms of extracts and their names.] The products can be made from lawful hemp, or from illegal marijuana alike. The illegal versions have found their way into North Carolina, and questions abound regarding how to handle these cases. The questions most commonly involve wax and cartridges, so this post takes a look at the issues surrounding those cases (leaving the skin patches and edibles for another day).

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