A recent opinion out of the North Carolina Court of Appeals is causing comment in the criminal bar. In In The Matter Of J.B.P, (No. COA23-269), a juvenile petition was filed against the juvenile, alleging possession of marijuana with intent to sell and deliver, and carrying a concealed weapon. The juvenile filed a motion to suppress, arguing that the search of his car was unconstitutional.
The trial court conducted a hearing on the motion. The evidence indicated that Beaufort County Sheriff’s Lieutenant Davenport drove past the juvenile’s car, which was parked outside a suspected drug house. Lieutenant Davenport, who had recently attended a hemp training program and who testified that, as a result of the program, he was able to distinguish between the odor of marijuana and the odor of hemp, stated that he smelled marijuana in the vicinity of the car. Beaufort County Sheriff’s Investigator Cleary arrived on the scene to assist.
The investigators watched the juvenile’s car leave the house, return, and leave again. Inspector Cleary stopped the car and found the juvenile was the driver. Inspector Cleary testified that he saw bits of marijuana on the floorboard and could smell marijuana in the car and on the juvenile’s person. Based upon his training and experience, Inspector Cleary testified that marijuana had a “very distinct strong smell,” while the smell of hemp is “not as pungent and strong as marijuana.” Inspector Cleary searched the juvenile’s car and found a handgun, a digital scale, and 13.7 grams of marijuana.
The trial court granted the juvenile’s motion to suppress. In a written order, the court found that the stop of the juvenile’s car was proper. However, the subsequent search was not. The trial court took judicial notice of a 2019 State Bureau of Investigation memo, which concluded that an officer’s purported smelling or visual observation of marijuana no longer established probable cause of marijuana possession. The basis for this conclusion was that hemp (legal) and marijuana (illegal) are indistinguishable without chemical analysis. Accordingly, the trial court found the testimony of the law enforcement officers not to be credible. Upon granting the suppression motion, the court also dismissed the juvenile petition.
On appeal, the Court of Appeals noted that a warrantless search of a vehicle is permissible when supported by probable cause. Citing the Supreme Court of the United States, the Court of Appeals pointed out that probable cause requires only a probability of guilt, not absolute proof of guilt. Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103 S. Ct. 2317, 2335 n. 13, 76 L. Ed. 2d 527, 552 n. 13 (2983). In fact, innocent behavior can provide the basis for probable cause. Id.
The Court went on to note that, while marijuana is a controlled substance, the North Carolina General Assembly in 2015 passed the Industrial Hemp Act, legalizing the cultivation, processing, and sale of industrial hemp. Since that time, no North Carolina court has directly addressed the question whether the smell of marijuana, without more, is sufficient to establish probable cause of marijuana possession.
Before answering that question, the Court of Appeals discussed the SBI memo on which the trial court relied. It held that, while the SBI may order its agents not to bring charges under the circumstances presented there, that state agency “lacks authority to declare that an officer cannot establish probable cause under these circumstances.” Instead, the existence of probable cause at the time of a search is a question for the courts.
Turning then to the facts at hand, the Court cited Investigator Cleary’s testimony that he believed he smelled and observed marijuana in the juvenile’s car, then determined that this evidence was sufficient to support a finding of probable cause that the car contained marijuana. The Court went on to note that the trial court’s conclusion that hemp and marijuana were indistinguishable without chemical analysis effectively led to “an elevated probable-cause standard.” As noted above, innocent behavior can still support probable cause. If the investigators confused hemp for marijuana, that is a fact for trial, not a suppression hearing. Consequently, the Court of Appeals reversed the rulings of the trial court.
Only time will tell if this case will be resolved on remand. However, the holding has stirred up waves in the criminal defense community. One commentator noted that, while probable cause is based upon the totality of the circumstances, the opinion makes no mention of that test. Perhaps of wider significance is the impact that this ruling could have on the legal hemp industry. A buyer of a legal product could be arrested and even held in pretrial detention. Buyers of that legal product may want to keep a receipt handy in case a constable turns up.
While these points are worth discussing and may turn up either in further processes in this case or elsewhere under similar facts, aspects seen here can be and sometimes are reflected in other controlled substance cases, where some poor fool thought he was buying cocaine and was instead given starch or another legal substitute. That buyer may find himself cooling his heels in confinement until a lab report clears him. Such instances are deplorable—no one should be jailed if their behavior was legal—but that scenario, played out with hemp instead of marijuana, would not be unique.
Let’s keep an eye on this one. –Bob Edmunds