The Charlotte Observer (Sunday)
Legal or illegal? How NC’s cannabis laws are impacting the criminal system
Though North Carolina has loosened some of its cannabis laws in recent years, the current legislation is having an impact on the state’s criminal system.
As it stands, it is still illegal to possess, sell or cultivate marijuana in the state, but hemp and any cannabis products sourced from hemp with less than a 0.3% delta-9 THC concentration are allowed.
Considering the similarities between the legal and illegal substances, the state’s cannabis laws have caused dilemmas regarding drug identification, search and seizures, and prosecutions.
“Under precedent pre-dating the legalization of hemp, a trained officer’s lay opinion that a substance is marijuana based on its sight or smell is sufficient to prove the identity of the substance,” Phil Dixon with the UNC School of Government said in a recent blog post.
But since the legalization of hemp, there are many legal hemp or hemp-based products that can’t be distinguished from marijuana by sight or smell, Dixon wrote.
“The impact of the odor of marijuana on law enforcement’s ability to have probable cause to obtain a search warrant or search a car, search a person is unsettled due to the existence of legal hemp,” Dixon previously told The Charlotte Observer.
“We’re in this weird place where the courts — in the criminal context — have started struggling with this question of ‘Is it still probable cause?’”
LEGAL OR ILLEGAL?
The issue of smelling marijuana, specifically, got a lot of attention on a recent Nextdoor post from a local woman who complained that her neighbor was regularly smoking marijuana above her Lake Norman apartment.
“An apartment above me is regularly smoking pot in the apartment. The fumes are filling my apartment nightly,” the post said. “I’ve had the police out and they have done nothing. The apartment complex has done nothing.”
Similar to Dixon’s point, one commenter wrote: “The legal stuff smells like the real stuff so you may think it’s illegal and the cops should do something, but they can’t if it’s legal.”
The similarities between the illegal and legal substances combined with evolving standards are making it difficult to distinguish what’s a priority for law enforcement, Dixon said.
“Given the widespread prevalence of these legal hemp products that look and smell and — in some cases — intoxicate just like marijuana, it’s a little unclear whether that still supports probable cause,” Dixon told The Observer.
LACK OF TESTING BETWEEN LEGAL AND ILLEGAL PRODUCTS
According to Dixon, substance testing at state crime labs and law enforcement labs also do not quantify the levels of delta-9 THC — only the presence of delta-9. Therefore, there’s not any true way to distinguish whether or not someone has crossed the legal limit, unless additional testing is requested.
“Sometimes the state produces a lab report in cases involving suspected marijuana that purports to identify a substance as marijuana, but the report fails to quantify specific levels of delta-9 THC. These reports may or may not disclose the fact that the testing did not distinguish between legal hemp and illegal marijuana on their face,” Dixon explained.
In some jurisdictions within the state, for some cases, the State will get a proper chemical analysis done, one that ostensibly distinguishes hemp from marijuana by measuring the concentration of delta-9 THC. This testing is done exclusively by private labs, Dixon explained.
“Depending on the specific testing methods used, the test results still might be subject to exclusion or attack on other reliability grounds.”
NO CLEAR ANSWER THROUGH COURT SYSTEM
But in some scenarios, the sight and smell of marijuana could be enough for reasonable cause, as seen with one case Dixon mentioned in his blog post, in which an officer smelled and saw what appeared to be marijuana residue in a car pulled over.
“Given the low bar for reasonable suspicion, it seemed likely that the sight or odor of cannabis would be treated by courts as a sufficient basis on which to briefly detain a suspect or to extend a traffic stop in order to investigate the potential criminal activity,” Dixon wrote.
But ultimately, there are still many questions, and with the issue still being litigated, Dixon says, those questions remain unanswered..
“The issue of probable cause to search for and seize suspected marijuana based on the sight or odor of cannabis continues to percolate through the court system without a clear answer,” he wrote.