The North Carolina State Bureau of Investigation (SBI) issued a “wish list” of items for inclusion in the North Carolina Farm Act of 2019 (SB315). SB315 addresses hemp and will replace the current industrial hemp pilot program if it is enacted.

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The penultimate concern for the SBI is that SB315 will eliminate probable cause:

“Hemp and marijuana look the same and have the same odor, both unburned and burned. This makes it impossible for law enforcement to use the appearance of marijuana or the odor of marijuana to develop probable cause for arrest, seizure of the item, or probable cause for a search warrant. In order for a law enforcement officer to seize an item to have it analyzed, the officer must have probable cause that the item being seized is evidence of a crime.”

This statement is remarkable in several ways. But, before I address them I want to acknowledge that, generally speaking, it is not unreasonable for the SBI to be concerned about an erosion of probable cause, a fundamental component of enforcing the law. However, as I discuss below, the SBI’s concern with respect to probable cause as it relates to hemp is misplaced.

The first reason that the SBI’s statement is remarkable is that it appears to be the first time that a law enforcement agency- any law enforcement agency- has acknowledged in a public writing that the appearance or odor of marijuana is no longer probable cause for arrest now that hemp is lawful. Since the distinction between lawful hemp and unlawful marijuana is based solely on the concentrations of one molecule, delta-9 THC, then neither the look nor smell of cannabis in and of themselves are sufficient to establish probable cause that the plant material at issue is marijuana. However, as simple as this concept is, I am not aware of it having been previously acknowledged in writing by law enforcement. That being said, the issue is a hot one in criminal law, as a quick Google search of “hemp probable cause” will show. Of the search results, I recommend this excellent article on the subject by Phil Dixon, a professor at the NC School of Government.

Second, the statement is remarkable in its support of the notion that passage of SB315 will effectively legalize marijuana in North Carolina. It will do no such thing. As Professor Dixon and rulings by both the Colorado and Vermont supreme courts point out, probable cause can be established by “odor plus”, namely, the smell of marijuana plus the existence of some other factor that provides a reasonable basis to believe that the plant material is, in fact, marijuana. This is not difficult and applies to any number of other circumstances. Parents routinely pull screaming kids off of playgrounds, but are not suspected of kidnapping unless some other factor is present. I can walk around downtown in my hometown of Asheville with a plastic bag of baking soda and not be suspected of possessing cocaine absent some other suspicious behavior. I am confident that we will not save more kids or arrest more coke dealers if we decide that holding screaming kids or bags of white powder are in and of themselves sufficient to establish probable cause of kidnapping or cocaine trafficking. The “odor plus” standard is working in other states and there is no reason that it cannot work in NC.