May an officer search a motor vehicle based on the officer’s detection of the odor of marijuana coming from the vehicle? May the officer search the occupants of the vehicle? Several recent cases address these questions. Continue reading
Tag Archives: marijuana
The existence of probable cause to search a vehicle and probable cause to search a vehicle occupant based on an odor of marijuana emanating from a vehicle present separate legal issues. The North Carolina Court of Appeals on August 2, 2016, ruled in State v. Pigford that although an officer had probable cause to search a vehicle, he did not have probable cause to search a vehicle occupant based on the marijuana odor. However, another theory mentioned by the court may ultimately support the admission of the illegally-seized evidence at the retrial of the case. Continue reading →
This session, the General Assembly made some changes to the statute governing the fingerprinting of criminal defendants. Inside and outside the School of Government, people are divided about whether the statute now requires officers to arrest, rather than cite, individuals for misdemeanor marijuana possession offenses. Continue reading →
It’s December 1. That means a number of new laws come into effect today. WRAL has a good rundown here, while the School’s annual summary of legislation of interest to court officials offers a more comprehensive review. For today’s post I’d like to focus on a sentencing question related to one of the changes that kicks in today: the reduced punishment for possession of marijuana paraphernalia. Continue reading →
The New York Times reported earlier this week that driving under the influence of marijuana is significantly less risky than driving with a blood-alcohol concentration of 0.08. That’s a good thing, since the Times also reported that impairment from marijuana is difficult to detect using the current battery of standardized field sobriety tests and difficult to confirm through subsequent laboratory tests. The article summarized several recent studies making these findings and noted the conclusion of some experts that public resources would be better spent combating alcohol-impaired driving, including perhaps lowering the per se threshold for alcohol concentrations to 0.05, than in establishing a per se limit for blood-THC content or devising roadside tests to detect for marijuana impairment.
Why is driving while stoned less risky? The simple answer is that marijuana and alcohol have different physiology. Drivers impaired by alcohol tend to overestimate their skills and drive faster. Drivers impaired by marijuana do the opposite. A professor of public policy interviewed for the Times article noted the old joke about “‘Cheech and Chong being arrested for doing 20 on the freeway.’” (The Times ran a picture of the famous comedic duo to accompany its story, which, if you ask me, it should have saved for Throwback Thursday (#tbt)). Studies estimate that drivers who are stoned are twice as likely to crash. A 20-year-old driver who has a blood-alcohol concentration of 0.08 percent, in contrast, is almost 20 times more likely to be in a fatal accident than a sober driver.
Why is marijuana impairment hard to detect? THC is the chemical that gives marijuana its psychoactive punch. It can take as long as four hours for THC metabolites to appear in urine after smoking, and urine can test positive for those metabolites days or weeks after a person last smoked. As the National Highway Transportation Administration’s fact sheet on marijuana puts it, this is “well past the window of intoxication and impairment.” And because concentrations of THC in a person’s blood depend in part upon the pattern of marijuana use, it is difficult to establish a relationship between a specified blood concentration and performance impairing effects. The Times reports that regular marijuana smokers could have a blood-THC content that meets the limits set in Colorado and Washington for THC concentration a full day after they last smoked.
Driving while stoned is illegal in North Carolina as is driving under the influence of any “impairing substance.” Yet, given the scientific limitations discussed above, stoned driving can be a tough case for the State to prove. While the State may establish per se impairment by proving that a person had any amount of a Schedule I controlled substance in his or her blood or urine, to prove impairment from marijuana, a Schedule VI controlled substance, the State must prove that the person’s physical or mental faculties were appreciably impaired by that substance at the time he or she drove.
Governor Pat McCrory recently appointed members to a Statewide Impaired Driving Task Force that is charged with developing a statewide plan for preventing and reducing impaired driving. Should the prevention of stoned driving be a priority for this group? Or should it instead focus on alcohol-impaired driving? What should its strategy be? Adoption or amendment of per se limits? Expanding options for treatment? Something else?
Have your say. Send in a comment below.
When a person is arrested while in possession of drugs and is taken to the jail in handcuffs, may the person properly be convicted of possessing drugs in a confinement facility? The question has divided courts across the country. Last week, a majority of the court of appeals concluded that the answer is yes. State v. Barnes, __ N.C. App. __ (2013) (Ervin, J.) (McGee, J., dissenting).
Facts. The defendant was arrested for DWI, and while he was being processed at the jail, a bag containing 4.05 grams of marijuana fell out of his pants. He was eventually convicted of, inter alia, possession of marijuana at a confinement facility in violation of G.S. 90-95(e)(9).
Mens rea issue. The court first addressed the defendant’s argument that there was insufficient evidence to convict him, as there was no evidence that he intended to bring the drugs to a confinement facility. The court of appeals disagreed, unanimously on this issue, ruling that the offense is a general intent crime, requiring only that the defendant knowingly possessed drugs at a confinement facility, which he did.
Voluntariness issue. The issue that divided the court was the defendant’s argument that he did not commit the offense voluntarily, as he was brought to the jail under arrest. Although agreeing that criminal liability generally requires a voluntary act, the majority nonetheless rejected the claim. It noted that the statutory language defining the offense says nothing about voluntariness, and that the apparent purpose of the statute – to minimize drugs in jails – would be best served by giving it broad application. But the heart of the opinion stated that a majority of other jurisdictions (7 out of 10 cited in the opinion) have upheld convictions for similar crimes under similar circumstances, and endorsed the reasoning of many of those courts that “a defendant who is arrested with controlled substances in his possession has options other than simply taking the controlled substances with him into the confinement facility. For example, the defendant always has an opportunity to disclose the existence of these controlled substances to the arresting officer before he ever reaches the jail.”
Dissent. Judge McGee dissented on the voluntariness issue, reasoning that “[t]he officer took Defendant to the confinement facility. Defendant had no ability to choose his own course of action regarding his location,” and so did not voluntarily possess the drugs at the jail. As to the majority’s suggestion that the defendant had the option of disclosing the presence of the drugs before reaching the jail, Judge McGee concluded that requiring the defendant to do so would violate his Fifth Amendment privilege against self-incrimination. (The majority stated in a footnote that the defendant did not raise the Fifth Amendment issue but that, in any event, the dilemma was of the defendant’s own making and did not involve testimony under coercion.)
Further review. I couldn’t find any indication on the supreme court’s electronic docket that the defendant is seeking further review based on the dissent, but that would be a natural next step. So, stay tuned for further developments.
Side issue regarding conviction for simple possession. It’s worth mentioning briefly that the defendant argued, the State conceded, and the court of appeals ruled that the defendant should not have been convicted of both the confinement facility offense and the lesser-included offense of simple possession.
The question. Many cases hold that the smell of marijuana provides probable cause to search a vehicle. See, e.g., State v. Greenwood, 301 N.C. 705, 708 (1981); State v. Smith, 192 N.C. App. 690 (2008) (“When an officer detects the odor of marijuana emanating from a vehicle, probable cause exists for a warrantless search of the vehicle for marijuana.”). I have been asked many times whether that principle extends to individuals. In other words, if an officer detects the odor of marijuana emanating from a person, may the officer search the person?
The answer. Generally, the answer under North Carolina law is yes. See State v. Yates, 162 N.C. App. 118 (2004) (smell of marijuana provided probable cause to search suspect, and potential destruction of evidence provided exigency supporting warrantless search); State v. Burch, 2006 WL 2671337 (N.C. Ct. App. Sept. 19, 2006) (unpublished) (officer who smelled odor of marijuana emanating from suspect had probable cause and exigent circumstances supporting a warrantless search). Cf. State v. Rivens, 198 N.C. App. 130 (2009) (officer “noticed a bulge in defendant’s shirt, the smell of marijuana on defendant, and the nervous twitch of defendant’s mouth,” and this “was sufficient to create a reasonable and articulable suspicion of criminal activity” and to support a frisk); In re S.W., 171 N.C. App. 335 (2005) (SRO working with school officials had “reasonable grounds” to search a juvenile when the officer smelled a strong odor of marijuana coming from the student).
Split of authority in other jurisdictions. As a matter of intellectual interest, it is worth noting that this issue has divided courts elsewhere. Plenty of cases reach results similar to those reached by our appellate courts. See, e.g., United States v. Humphries, 372 F.3d 653 (4th Cir. 2004) (“[I]f an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana.”); State v. Moore, 734 N.E.2d 804 (Ohio 2000) (probable cause and exigent circumstances existed to support a search of the defendant where an officer detected a strong odor of marijuana coming from the defendant and his vehicle). However, there are also cases in other jurisdictions that disagree. See State v. Smith, 2011 WL 4563077 (Kan. Ct. App. 2011) (unpublished) (noting that “the Kansas Supreme Court has found probable cause to search a vehicle based solely upon the odor of marijuana” but concluding that “[u]nder current Kansas law the odor of marijuana alone is not enough” to justify the search of a person); United States v. Smith, 694 F.Supp.2d 1242 (M.D. Ala. 2009) (stating that while “the smell of narcotics does constitute probable cause to search the vehicle” the prosecution presented no authority for the proposition “that the smell of marijuana constitutes probable cause to search the person”).
Variants on the question. There are interesting variants on this question. For example, does an odor of marijuana emanating from a group of people provide a justification for searching each of them? See A.T. v. State, 93 So.3d 1159 (Fla. Ct. App. 4th Dist. 2012) (discussing conflicting precedents on this issue). Does an odor of marijuana emanating from a person allow the search of a vehicle in which the person was a recent occupant? And, are there unusual circumstances under which an odor of marijuana emanating from a person doesn’t justify a search, such as when the person has just left a raucous party and exudes only a mild odor of marijuana that may be due to environmental marijuana smoke at the gathering? I’ll leave those for another post.
Last week, a legislative committee at the General Assembly rejected a bill that would have permitted medicinal use of marijuana. The News and Observer covered the story here, and the bill itself is here. There doesn’t appear to be any chance that the legislature will follow Colorado and Washington and make recreational marijuana legal under state law. So, for good or for ill, statewide marijuana reform appears to be off the table for now. (Note that marijuana is already treated differently than some other controlled substances. For example, G.S. 90-95(d)(4) prohibits active sentences for low-level marijuana possession crimes.)
Advocates for reform of the marijuana laws may be coming home from the General Assembly empty-handed, but they have at least one tool in their toolbox that doesn’t depend on the state legislature. They may seek to have their cities or counties declare that marijuana offenses are the lowest law enforcement priority.
I only recently became aware of so-called LLEP laws, but they appear to be a familiar tactic for organizations like the Marijuana Policy Project, which encourages citizens to “[w]ork to get your city council to pass an ordinance making marijuana offenses the city’s lowest law enforcement priority.” Likewise, the North Carolina website of the National Organization for the Reform of Marijuana Laws (NORML) says:
[W]e start at the local level to coordinate city and campus campaigns to push ballot initiatives that will make marijuana the lowest priority for police. These Lowest Law Enforcement Priorities (LLEP) are largely symbolic as state law still says marijuana possession is a crime. However, once enough cities pass these resolutions in North Carolina, that will send a message to the legislators in the General Assembly.
We haven’t exactly reached the tipping point envisioned by NORML. As far as I know, no North Carolina city or county currently has such a law. (Please post a comment or let me know if you are aware of any, or of any law enforcement agency that has itself adopted a policy deprioritizing enforcement of the marijuana laws.) Nationwide, however, this Wikipedia page states that at least the following jurisdictions have LLEP laws:
- Eureka Springs, Arkansas
- Fayetteville, Arkansas
- Berkeley, California
- Oakland, California
- Santa Barbara, California
- Santa Cruz, California
- San Francisco, California
- Santa Monica, California
- West Hollywood, California
- Denver, Colorado
- Hawai’i County, Hawai’i
- Columbia, Missouri
- Missoula County, Missouri
- Seattle, Washington
- Tacoma, Washington
The details of the laws differ. For example, some purport to be binding while others are just recommendations; some address only possession and use of very small quantities of marijuana while others are more encompassing; and some address only law enforcement actions while others seek to guide prosecutors as well. Furthermore, the above list isn’t complete, as shown by this story about the success of a recent LLEP initiative in Ypsilanti, Michigan. And of course, some of the laws have been superseded by recent events, such as Denver’s law, which doesn’t make much sense after Colorado’s legalization. Finally, an LLEP law does not make marijuana use legal. Marijuana use is illegal nationwide under federal law, and it is a violation of state law in most states.
There are a few cases involving proposed LLEP laws and the electoral process. See, e.g., Davidson v. Wright, 151 P.3d 812 (Id. 2006) (holding that a city clerk improperly refused to process an initiative petition that, in part, would have made enforcement of the marijuana laws the city’s lowest law enforcement priority); Detroit Coalition for Compassionate Care v. Detroit City Clerk, 2002 WL 31379844 (Mich. Ct. App. Oct. 22, 2002) (unpublished) (ruling that a city clerk properly rejected a similar petition as violative of the city charter).
I couldn’t find any cases in which law enforcement had challenged the laws as a usurpation of police authority. In the municipal context, such challenges might face an uphill battle: the police department is a department within city government, and generally must march to the tune of the city council. On the other hand, I can imagine an argument that deciding which crimes to prioritize is inherently a matter for the police to determine. A similar argument was made in the now-defunct litigation over the Fayetteville City Council’s authority to order the police to refrain from conducting consent searches during traffic stops, described here. (One possible distinction between the two situations is that there is a statute expressly permitting police officers to undertake consent searches, see G.S. 15A-221; as far as I know, there isn’t a statute expressly allocating to the police chief the power to set law-enforcement priorities.)
In the county context, the sheriff is an independent elected official and generally may establish his or her own priorities. The county commission has the “power of the purse” and so has at least some indirect influence over the sheriff’s operations, but it may lack the direct authority to set the sheriff’s priorities. Accordingly, an LLEP law enacted by a county commission might be more vulnerable to a legal challenge.
It should go without saying that the School of Government is neutral on LLEP laws. As I said, I’ve only recently learned about them and thought that they were interesting. If you have experience with, or opinions about, such laws, please post a comment.
Finally, those interested in promoting, or preventing, reform of the marijuana laws may be interested in this half-day CLE program sponsored by the North Carolina Bar Association. My colleague Richard Whisnant has helped organize it, so I suspect that it will be first rate.
G.S. 90-95(a)(1) makes it a crime to knowingly sell or deliver a controlled substance to another person. As a general rule, the delivery of marijuana—a Schedule VI controlled substance—is a Class I felony. G.S. 90-95(b)(2). However, the statute provides that it is not a delivery to transfer for no remuneration less than 5 grams of marijuana or less than 2.5 grams of a synthetic cannabinoid or any mixture containing such a substance. Id. This provision sometimes is called the “pot exception.” Here’s how it might apply: Two friends are sitting on a bench. One is smoking a joint. After taking a few hits, he passes it to his buddy, who does the same. No money changes hands. In this scenario, unless the joint is a monster-sized one, less than 5 grams of marijuana is likely to be involved. (Before you start pummeling me with questions and innuendo about how I know this, let me clarify: I googled it! Web sites with names like “Weedy” and “Grass City” and informed me that a joint typically contains less than 1 gram of marijuana.) But let’s get back to our example. In this scenario, there is no delivery because less than 5 grams of marijuana was transferred and no remuneration was involved. Of course, both friends are guilty of simple possession. And yes, for you zealous officers, possession of paraphernalia (the rolling paper) applies as well.
A recent case, State v. Land, addressed a couple of issues regarding this offense. In Land, the defendant gave Andrew Demaioribus, an undercover officer, a bag containing 2.03 grams of marijuana. He was charged with, among other things, delivery of marijuana and after being convicted he appealed. On appeal, the defendant first argued that the indictment charging delivery of marijuana was defective because it failed to allege an essential element of the offense. Specifically, he asserted that because he was charged with delivery of less than 5 grams of marijuana, the indictment was defective in that it failed to allege that he received remuneration. Over a dissent, the majority rejected this argument. It cited State v. Pevia, 56 N.C. App. 384, 387 (1982), for the proposition that G.S. 90-95 creates a single offense of delivery of a controlled substance, with no separate offense of delivery of marijuana. As a result, it concluded, an indictment is valid when it alleges, as here, that the defendant “did unlawfully, willfully and feloniously deliver to [a specified person] a controlled substance, to wit: marijuana, which is included in Schedule VI of the North Carolina Controlled Substances Act.” It continued, explaining that under Pevia the State can prove delivery of marijuana with evidence either (1) of a transfer of 5 or more grams of marijuana, or (2) of a transfer of less than 5 grams of marijuana for remuneration. It concluded: “Since the methods of proof set out in [G.S.] 90-95(b)(2) are mere evidentiary matters, they need not be included in the indictment.” The dissenting judge agreed with the defendant’s argument, noting that in State v. Partridge, 157 N.C. App. 568, 570 (2003), the court had vacated the defendant’s conviction of felony possession of marijuana because the indictment failed to allege the amount of marijuana that he possessed.
Notwithstanding this disagreement about charging language, all three judges agreed that the trial court erred by failing to instruct the jury that a transfer of less than 5 grams of marijuana for no remuneration is not a delivery. The trial court had instructed the jury as follows:
The Defendant has been charged with delivering marijuana, a controlled substance. For you to find the Defendant guilty of this offense, the State must prove beyond a reasonable doubt that the Defendant knowingly delivered marijuana to Mr. Demaioribus. If you find from the evidence beyond a reasonable doubt that on or about the alleged date the Defendant knowingly delivered marijuana to Mr. Demaioribus, then it would be your duty to return a verdict of guilty. If you do not so find or if you have a reasonable doubt then it would be your duty to return a verdict of not guilty.
The court concluded that because the evidence showed a transfer of only 2.03 grams of marijuana, the trial court erred by not instructing the jury that in order to prove delivery, the State was required to prove that defendant transferred the marijuana for remuneration. However, the court found that the error did not rise to the level of plain error.
Obviously, because of the dissenting opinion, we’re likely to be hearing from the Supreme Court on the indictment issue. When that happens, I’ll be sure to give you an update.
As I mentioned in a recent news roundup, earlier this month the Supreme Court of North Carolina decided State v. Ward. The basic holding of the case is that the visual identification of controlled substances is not reliable enough to be admitted in criminal trials, and that a chemical analysis of such substances is normally required in order to identify them. Earlier blog posts on this general subject are here, here, and here.
In thinking about Ward and talking about it with my colleagues and with lawyers across the state, a couple of topics have come up time and again. I thought I’d post about them.
1. Does Ward mean that the state must conduct a chemical analysis of every pill in, for example, a case involving 500 pills of ecstasy? No. In the words of the court, “A chemical analysis of each individual tablet is not necessary. The SBI maintains standard operating procedures for chemically analyzing batches of evidence, and the propriety of those procedures is not at issue here. A chemical analysis is required in this context, but its scope may be dictated by whatever sample is sufficient to make a reliable determination of the chemical composition of the batch of evidence under consideration.”
2. Does Ward apply to marijuana? I don’t know. Some of the language in the opinion is very broad. For example, “the burden is on the State to establish the identity of any alleged controlled substance that is the basis of the prosecution. Unless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required.” Slip Op. at 23 (emphasis added). And the court specifically referred to Schedule VI, the controlled substance schedule that includes marijuana and virtually nothing else, when it said that chemical definitions of drugs were present “throughout the lists of Schedule I through VI controlled substances.” Slip Op. at 15. On the other hand, (1) marijuana can be identified not just visually, but by smell also, arguably increasing the reliability of a non-chemical identification; (2) “marijuana” is listed in Schedule VI, but “marijuana” is not a chemical definition, meaning that part of the court’s rationale does not apply to marijuana; and (3) one of the reasons the court gave for requiring chemical analysis was the prevalence of counterfeit controlled substances, see Slip Op. at 18, but the Congressional hearings and FDA reports to which the court cited appear to concern counterfeit pharmaceuticals; counterfeit marijuana may be less prevalent or easier to distinguish from the real thing. All I can say for sure is that whether Ward effectively overrules State v. Fletcher, 92 N.C. App. 50 (1988) (approving visual identification of marijuana), will be hotly contested across the state in the coming months.
3. What does the court mean when it says chemical analysis is required “[u]nless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance?” Again, I don’t know. But at least two possibilities come to mind. First, the court might be leaving the door open to some alternative technology, like radiological identification of drugs, that may not properly be classified as a “chemical analysis.” (Perhaps someone with a science background could weigh in here?) Second, the court might have in mind situations where the defendant himself — or perhaps a customer who has consumed the defendant’s product — identifies the drugs in question. I assume that a stipulation to the identity of the drugs would also suffice.
If folks have other questions or comments about Ward, chime in.