NC Court of Appeals reverses course on marijuana smell for searches

CHARLOTTE — Hemp and marijuana are different names for the same plant, but it can be legal or illegal depending on how much Delta 9 THC it has in it. But the smell of it could land you in trouble even if the substance is legal.

Until hemp became legal in North Carolina in 2022, the standard for officers to establish probable cause for a search was well understood.

“If you’re a trained officer who can testify yes, I know how to identify this stuff by sight and smell, that’s enough for probable cause to search somebody and that’s all you need to prove at trial either – the officer’s just word that this is marijuana,” said Phil Dixon, an attorney who now teaches at the University of North Carolina School of Government.

Dixon says what constituted probable cause was an open legal question because smelling the difference between these new cannabis products and marijuana is impossible, according to the State Bureau of Investigation. That was until a trial court judge ruled that officers could not search someone based on a smell alone.

Then the North Carolina Court of Appeals overturned that decision this week.

“From the perspective of people using hemp products, it certainly sets the standard that says you’re subject to search just for smelling like it. And whether it’s hemp or marijuana, that’s for the officer to investigate, and if they’re wrong about it, and charge you anyways, well you can prove the difference at trial,” Dixon told Channel 9′s Evan Donovan.

Local attorneys told Channel 9 that the Charlotte-Mecklenburg Police Department has been operating on an “odor-plus” policy, meaning they could search if they smelled what they thought was marijuana and had some other smell or piece of evidence. We’ve reached out to CMPD to confirm if that is their policy and whether it will change based on the new ruling.

(VIDEO: Local hemp grower pushes for bill that would legalize medical marijuana in North Carolina)

Local hemp grower pushes for bill that would legalize medical marijuana in North Carolina

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