Don’t smoke in your car in North Carolina. The North Carolina Court of Appeals recently found that the odor of marijuana is still enough for search even if an officer can’t tell whether or not you’ve been smoking hemp or marijuana.

Legal Ramifications: Odor of Marijuana and Vehicle Searches

So, the North Carolina Court of Appeals expanded what I believe is a longstanding crappy precedent that the odor of marijuana is enough to trigger a search of a person or a vehicle. Now, there has been lots of horrible case law that has come from this precedent where it’s ended up that no marijuana has even been found, and it’s caused lots of other issues, and people have gotten in trouble. And honestly, it’s probably the precedent that is cited most when people talk about the harm that has been visited on Hispanic and black communities due to the war on drugs and specifically the use of cannabis as a precursor to a search in those communities.

Legal Defense Strategy

For a couple of years now, since hemp became legal in the state of North Carolina, defense attorneys have been using the argument that an officer cannot tell the difference between hemp and marijuana by sight or smell, and hemp is legal. This argument was backed up by a memo from the North Carolina State Bureau of Investigation, our state version of the FBI, that said exactly that. There is no amount of officer training or knowledge or experience that is going to make it possible for an officer to look at flower to look at hemp material or marijuana flower material and say I can tell the difference between those two and they don’t smell any different they don’t look any different. So when that was recognized by law enforcement through the North Carolina SBI, it became one of the biggest arguments for defense attorneys to make when somebody was charged with possession of marijuana if somebody if if the smell of marijuana was the origination of a search that then resulted in other criminal charges and had been a relatively successful argument.

Recent Court Decision

The North Carolina Court of Appeals just shot that in the foot. They found in January that there was a case where a gentleman was stopped in Charlotte he had a revoked license revoked tag there was an odor of marijuana which then led to a search of the vehicle and his person which led to the finding of other substances and the court basically hung its hat on the idea that there’s been long-standing precedent that the odor of marijuana is enough to search and they refused to even address the issue of whether or not hemp the hemp issue came into the equation because there was so much else that the officer could have relied on such as his strange behavior and his statement that he had just picked up the car from his friend and his friend might have smoked in the car and the fact that his license was revoked and the tag was revoked I think it’s a cop out personally but who am I.

So here’s where we land. The court did acknowledge that the legal issues raised by the recent legalization of hemp have yet to be analyzed by the appellate courts and apparently they’re not planning to engage on it now either because they didn’t in this case. So they have continued to punt that down the road and instead now it’s essentially an extension of the precedent that the odor of marijuana is enough even if hemp is legal and even if you can’t tell the difference maybe as long as there are other factors present but weirdly enough there always seem to be other factors present.

Looking Towards the Future

So what I would say is hopefully one day very soon North Carolina is going to join the majority of states that have legalized cannabis either for medicinal purposes or recreational purposes. Will the North Carolina Court of Appeals at that point address whether or not the odor of marijuana is then enough to initiate a search? One would hope so but we’ll just all have to hold our breath until then until that point don’t smoke in your car don’t smoke in public keep your stash at home.