North Carolina Court of Appeals Considers Whether Marijuana Odor Alone is Enough for Probable Cause

Priscah Oluoch

For years in North Carolina, the suspected odor of marijuana alone provided probable cause for law enforcement officers to search vehicles and obtain search warrants for homes. The decriminalization of marijuana in many states and the legalization of hemp across the country has caused many state courts to reassess whether odor alone provides probable cause that criminal activity has actually occurred. Progressive legislation across the U.S. has led to the legalization of recreational marijuana use in 19 states. 

Though marijuana remains illegal in North Carolina, the rise of the CBD hemp flower in North Carolina has caused state courts to reassess the legal foundation for searches that relied on the once-unique odor of marijuana. Hemp shares many indistinguishable characteristics with marijuana, including the odor that emits when both plants are burnt or unburnt. Hemp and marijuana are both derived from the same cannabis plant and share the same genetic makeup. 

Additionally, North Carolina law enforcement officials have admitted the difficulty in differentiating between legal industrial hemp and marijuana in a memo here. While there have been a few training sessions made available to learn about the differences between the two, officers have still been unsuccessful in determining whether an odor is burnt CBD or marijuana. Hemp is fully legal in North Carolina, and arrests made on the basis of marijuana odor can lead to the criminalization of lawful activity because there is no field test to determine whether a plant is CBD hemp or marijuana. 

North Carolina trial courts are awaiting guidance on the sufficiency of marijuana odor to support probable cause searches from pending appellate cases. In one such case, State v. Teague, an officer stationed at a FedEx location removed a package from the conveyor belt citing suspicion in the recipient’s phone number and address. The officer’s canine smelled the package for contraband and a search was conducted based on the odor of the box. 

The canines receive training in the detection of narcotics, however, they are unable to detect the difference between marijuana and hemp and alert their handlers to the presence of both because of the identical odor. Expert testimony in the case revealed that the chemical identification process for marijuana is a multistep quantitative analysis, therefore underscoring the unreliability of a first smell and sight impression to accurately detect marijuana. Oral arguments were heard before the North Carolina Court of Appeals in Teague and an opinion is currently pending. 

The North Carolina Compassionate Care Act was drafted in 2022 with the goal of legalizing medical marijuana use in North Carolina. The bill passed in the Senate with a 37-6 vote. However, the bill was voted down by House Republican legislators. Progressive lawmakers in North Carolina have seen significant pushback in the race to legalize marijuana. However, pending case law from the North Carolina appellate court should soon provide the much needed guidance for probable cause searches and marijuana odor. 

Brennan Aberle of Aberle & Wall recently won a suppression motion in a Guilford County Superior Court case where a search of a car was based on the suspected odor of marijuana alone. The motion successfully suppressed evidence that arose from a probable cause vehicle search that relied on marijuana odor. The Court found that the marijuana was not sufficient for probable cause due largely in part to the arresting officer’s inability to distinguish between the burnt odor of hemp and burnt marijuana.