The legal haze around hemp alternatives has police in a bit of a high-stakes- dilemma.
It might feel like the country is making big strides toward decriminalizing marijuana. And in a lot of ways, that’s true.
For many people, legal weed alternatives—sold in hemp shops, gas stations, bars, and even grocery stores—seem like a safer way to get similar effects without the legal risk.
But there’s a new issue stirring the legal community. Attorneys around the state have raised concerns how these lookalike products are affecting the way police handle drug-related arrests. With some many legal marijuana alternatives, such as THC-A and Delta 9, on the open market, the lines have gotten blurry – and some worry that this may be stretching the limits of probable cause.
Back in 2018, Congress passed the 2018 Farm Act which allowed for the legal sale of products containing less than 0.3% delta-9 THC. This legislation was then adoptee by North Carolina’s General Assembly in 2022 with N.C. Gen. Stat. § 106-568.51(7)(2022).
If THC sounds familiar, it is because it is the ingredient that is responsible for the “high” users feel when they smoke marijuana. This small, seemingly insignificant legal distinction allows for hemp-based companies to take off, especially in the Triangle.
Hemp products come in all shapes and sizes, including but not limited to flower, gummies, pre-rolled joints and even canned beverages. This is a stark comparison when you remember that recreational marijuana use and medical marijuana use are very much still outlawed in the state of North Carolina.
Courts in North Carolina have consistently held that law enforcement officers experienced in the identification of marijuana may testify to visual identification. This is cause for concern because scientist have confirmed that hemp and marijuana are virtually indistinguishable absent a chemical analysis.
Are officers still able to use sight and smell of marijuana alone to establish probable cause to search a person or their vehicle? Presently, yes. In September of 2024, the North Carolina Court of Appeals heard the oral arguments for State v. Little, 295 N.C. App. 541 (2024), where the attorney for the defendant challenged the validity of the investigating deputy’s probable cause.
In 2020, a Hoke County Sheriff’s Deputy observed a Ford F-150 truck failing to maintain proper lane control, citing three separate instances of his truck crossing the center line. In response to his observations, the deputy conducted a traffic stop on the vehicle. Upon approaching the driver side window of the vehicle, the deputy claimed to smell a “strong odor of marijuana”. Id. at 542. When the backup officer arrived on the scene to assist the deputy conducting the stop, the two officers witness what appeared to be a significant amount of marijuana residue on the passenger floorboards of the truck. The officers then conducted a full search of the vehicle, based on the evidence of criminal activity found in plain view, which led to the recovery of a firearm, bullets; an open box of sandwiches; two cell phones and $10,600 in cash. Id.
In order for an office to conduct a warrantless search of your vehicle, there must be probable cause to search for evidence of criminal activity. Probable cause is based on specific, articulable facts. At trial, the defense argued that the mere sight and smell of what appeared to be marijuana would not rise to the level of probable cause because there is no other evidence to suggest the presence of a controlled substance and not a hemp-based alternative. The trial court, however, ruled in favor of the State, holding that the odor and sight of what appeared to be marijuana was sufficient to establish probable cause.
At trial, the defense made a motion to suppress the evidence recovered from inside the vehicle arguing that the odor or appearance of marijuana, standing alone, after the legalization of hemp was insufficient to establish probable cause. As previously stated, cannabis and its cousin, the hemp cannabinoid are ultimately indistinguishable based on smell or visual identification alone.
Last September, this case was heard by the North Carolina Court of Appeals who affirmed the trial Court decision. There is, however, a petition for discretionary review pending at the North Carolina Supreme Court, it is it possible that they will want to weigh in on this controversial question.
How does that decision apply to you? Well, for one, odor and sight of “marijuana” alone are enough to substantiate probable cause for a warrantless search and seizure by police under the Fourth Amendment of the United States Constitution. If you are someone that uses hemp products recreationally, it is important you take steps to protect yourself during encounters with law enforcement.
First and foremost, we recommend you always keep a receipt of purchase with your hemp product. It is best to keep their purchase in its original packing. Furthermore, if you chose to travel with it, remember that it is still a criminal offense to operate a motor vehicle on a public roadway while under the influence of an impairing substance. Hemp products like THC-A and Delta-9, while legal, are still impairing substances that could result in a DWI charge. All in all, smoke responsibly.
This remains a rapidly evolving area of law, with new developments and court decisions continuing to shape how marijuana alternatives are treated in the legal system. As things unfold, we’ll be keeping a close eye on the latest updates and what they mean for both law enforcement and individual rights. Be sure to check back here regularly—we’ll share new information as soon as we receive it from the courts.
If you have been charged with either a misdemeanor or felony relating to marijuana, give Granados Law Group a call today at 919-650-2851 and our experienced attorneys can discuss how to protect your legal rights in a rapidly changing legal landscape.