Is it cool to use the smell of cannabis as probable cause to search a car? While most readers likely answer with a resounding “no,” just such a question is currently being hashed out, pun intended, by courts in North Carolina, a state that historically leans conservative. 

On Tuesday, the North Carolina Court of Appeals overturned a lower court’s ruling to exclude evidence gathered during a traffic stop. This decision comes amidst ongoing legal debates regarding whether the mere scent of cannabis alone constitutes enough grounds for police to conduct a search of a vehicle.

While hemp is legal in North Carolina, the Tar Heel state has not joined the legions of others in legalizing cannabis. But hemp’s legal status is at the crux of the case, bringing about the current legal debate. However, in 2021, North Carolina clocked in at third place for the highest level of cannabis arrests, the incident in question could be one of thousands.

On May 17, 2021, a Charlotte-Mecklenburg Police Department officer conducted a traffic stop of Antonio Demont Springs, citing a suspicion regarding his vehicle’s license plate. The court document noted Springs’ apparent anxiety as the officer neared the vehicle, as evidenced by his trembling hands while handling over his paperwork.

The cop discovered that Springs was operating the vehicle with a revoked license, and further investigation revealed that the license plate was a fake. When questioned about the scent of cannabis, Springs denied having smoked in the car. “I just got the car from my homeboy,” Springs told the officer. “That’s probably why.”

The cop in question then asked Springs to get out of the vehicle. The officer opened a Crown Royal bag and found a digital scale, “a green leafy substance,” per the opinion, two baggies of white powder, and baggies of pills. Just reading about such a run-in with the law is enough to make one’s hands shake. 

Springs faced charges including possession of drug paraphernalia, drug trafficking, and intent to sell or distribute a controlled substance. He challenged the legality of the evidence obtained by the cop, arguing that there was no probable cause for the car and his Crown Royal bag search. Springs pointed out that in North Carolina, hemp is legal and cannot be visually or olfactorily distinguished from its euphoria-inducing marijuana relative. Therefore, he argued, the mere smell of marijuana alone should not be enough grounds for police to search vehicles in the state. 

Springs cited a memo from the State Bureau of Investigation, which clarifies that while industrial hemp and marijuana are the same plant species, as hemp typically does not contain enough THC to be psychoactive, not to mention, is legal, police should not be able to pull folks over for what may be deemed a suspicious smell alone. The memo highlights that the legalization of hemp presents challenges for law enforcement, as there is no straightforward method for police to differentiate between hemp and marijuana. Such a fact may be tricky for cops, but it’s a win for citizens and anyone interested in lowering the incarceration rate in North Carolina. 

The trial court sided with Springs. They concluded that since hemp is legal and has a similar odor to marijuana, the smell alone does not justify sufficient cause for a police vehicle search. 

But the Court of Appeals disagreed, writing: “This Court and our state Supreme Court have repeatedly held that the odor of marijuana alone provides probable cause to search the object or area that is the source of that odor,” wrote Judge Toby Hampson, a Democrat, joined by Judge Jefferson Griffin, a Republican. Hampson did note a Court of Appeals decision from 2021 that reads: “The legal issues raised by the recent legalization of hemp have yet to be analyzed by the appellate courts of this state.”

However, in Springs’ situation, unfortunately for him, the officer had multiple other factors indicating probable cause, such as his comment about his friend potentially having smoked weed in the car, not to mention the invalid license and a fake license plate. Hampson elaborated that the policeman was aware of other elements besides the smell, concluding that the trial court was mistaken in trying to suppress the evidence obtained from the search.

He also criticized the state’s attorneys for not adhering to the Rules of Appellate Procedure, as they failed to “provide any basis for appellate review” in their submission.

It’s one of many incidents that will undoubtedly continue to play out as the U.S. reckons with and reassess the ongoing and evolving cannabis laws. During September of last year, the State of Minnesota Court of Appeals affirmed that cannabis odor doesn’t constitute enough probable cause alone to search a vehicle. However, in Wisconsin, the reverse ruling came in, as courts decided despite the legality of CBD, cannabis odor was enough to search a car.