This post focuses on the current legal landscape in North Carolina regarding how law enforcement treats legal hemp versus marijuana during traffic stops. However, please note that this post is not intended to provide specific legal advice for any individual or situation. If you should require any individual follow-up or clarity, then please consider scheduling a consultation for a more in-depth and individualized analysis.
Most of us are indeed familiar with this scenario—either through personal experience or crime TV shows: A police officer pulls over a driver for “speeding,” asks for the driver’s license and registration, and performs a records-check, which shows no issues. Instead of just issuing a ticket, the officer then claims to smell marijuana and orders the driver to wait handcuffed in their patrol car while the officer searches the suspect vehicle without a warrant, based on their suspicion of marijuana being present. The officer then finds something they believe to be marijuana, leading to the driver’s arrest.
The question presented here is whether the officer was truly legally justified in making the arrest, based solely on their belief that the driver was in illegal possession of marijuana. Personally, I have concerns about whether the officer was legally justified in prolonging the duration of the stop, was legally justified in making the arrest, and whether the speeding violation was even accurately determined. But for this post, the focus is specifically on the issue of “marijuana” possession.
Under current North Carolina law, for an officer to make a warrantless arrest, they need to have “probable cause”—a reasonable belief, based on particular facts, that a crime has occurred and the suspect is the alleged perpetrator of said crime. In this case, when an officer smells alleged marijuana coming from a vehicle, it is typically considered enough to justify a warrantless search of the vehicle. However, this situation becomes complicated with the possibility of legal hemp, which looks and smells almost identical to illegal marijuana.
The North Carolina State Bureau of Investigation (SBI) has openly acknowledged this challenge. In their memo, the SBI highlights that law enforcement cannot easily tell the difference between hemp and marijuana just by smell or even sight, and there is no readily available field-test to accurately determine which is which. Because of this difficulty, officers are left to guess whether a substance is legal or illegal. This is cause for great concern because the citizens deserve better protection against potential unlawful governmental searches or arrests.
To address this issue, I, along with other legal scholars, suggest that courts adopt a more reasonable standard for using marijuana odor as the basis for probable cause determinations. Instead of relying solely on the smell, which could lead to inaccurate conclusions, courts should apply an “odor-plus” standard. This means officers would need to consider the smell of supposed-marijuana alongside other facts or observations before making a decision. If we don’t adopt a more reliable approach, we may be heading toward a future where the Fourth Amendment—our protection against unreasonable searches and seizures—becomes significantly weakened more than it already has thus far.
Attorney Jordan M. Thomas is primarily based in the Greensboro office of Law Firm Carolinas. Attorney Thomas’ experiences have allowed him to litigate cases in various courts in numerous counties throughout the State of North Carolina. His practice primarily focuses on criminal defense, general civil litigation, driving while impaired (DWI) defense, landlord/tenant matters, and even certain domestic violence matters.