It has been long established in North Carolina that the smell of marijuana alone gives arresting officers probable cause to search automobiles for marijuana. Important to note, probable cause is defined as follows: “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.” Understandably, the smell of marijuana has often led law enforcement to be reasonably suspicious that the person or vehicle the smell is emanating from is guilty of smoking or possessing marijuana; thus, law enforcement has probable cause to search
However, in 2015, North Carolina enacted the Industrial Hemp Act, which legalized the cultivation, processing, and sale of industrial hemp. Then, in 2018, North Carolina removed industrial hemp from the controlled substances list. Thus, while marijuana is still illegal to possess or use in North Carolina, industrial hemp is currently legal in North Carolina, according to N. C. Gen. Stat. § 106-568.50.
Due to these changes in North Carolina law, recent case law called for the reexamination of precedent, hoping to find that the smell of marijuana alone no longer constitutes probable cause to search a vehicle. State v. Parker, 277 N.C. App. 531, 2021-NCCOA-217, reached the North Carolina Court of Appeals in 2021. In this case, an officer smelled marijuana emanating from within a defendant’s vehicle, so proceeded to search it. Accordingly, the defendant argued before a trial court that the search was not supported by probable cause. His argument was based on the fact that legal hemp and illegal marijuana smell the same. The argument followed that law enforcement can no longer conclusively state they smelled or saw an illegal substance when they could be seeing or smelling legal hemp. Thus, law enforcement cannot have probable cause to believe an illegal substance is within the vehicle.
Despite this argument, the trial court still held that the search was reasonable since the officer smelled marijuana, basing their decision on the long ago decided precedent. The defendant in State v. Parker then appealed to the Court of Appeals, hoping for a reexamination of precedent.
For now, though, the Court of Appeals has decided to stick with precedent and agree with the trial court, finalizing their decision in State v. Parker in May of 2021. The Court of Appeals held that despite recent changes in law, the smell of marijuana still gives police officers probable cause to search a vehicle.
This does not mean the Court of Appeals is not open to reexamining precedent, though. In State v. Parker, the Court of Appeals acknowledged that precedent may need to be reexamined in light of the new legislation. Unfortunately, they could not do so Parker because there were multiple facts giving the officer probable cause to search, including an admission from the defendant that they had marijuana in the vehicle.
So, what does this mean? This means that if a case were to come before the Court of Appeals where the only factor giving rise to probable cause to search a vehicle is the smell of marijuana, the Court of Appeals may be open to reexamining precedent and may find that smell of marijuana alone no longer constitutes probable cause to search a vehicle.
To discuss your case and explore your legal options, please don’t hesitate to contact King Law Offices at 888-748-KING (5464). Our knowledgeable staff will provide a confidential consultation, allowing us to assess your situation and provide the guidance you need.