Is that Legal Hemp or Illegal Marijuana? Essential Differences and the Consequences of Treating Them the Same

Potential impacts on North Carolina’s agricultural economy and the current challenges faced by law enforcement to establish probable cause in marijuana cases weigh heavily in the General Assembly’s decision regarding smokable hemp.

Photo by Rick Proctor on Unsplash

The 2019 North Carolina Farm Bill looks to ban smokable hemp throughout the state.  The North Carolina House of Representatives and Senate are at odds choosing a date to ban smokable hemp.  One side wants to accommodate law enforcement’s request to ban hemp, while the other side wants to make sure local farmers are protected.

The legalization of smokable hemp creates issues in relation to law enforcement’s ability to establish probable cause based on the odor or appearance of marijuana.  According to a memorandum released by the State Bureau of Investigation, “hemp and marijuana look the same and have the same odor, both burned and unburned.  This makes it impossible for law enforcement to use the appearance of marijuana to develop probable cause for an arrest, seizure of an item, or probable cause for a search warrant.”

The House of Representatives circled the wagons and passed a bill which would have banned smokable hemp on December 1, 2019.  The House favors this earlier date over the December 1, 2020, date proposed by the Senate, because of difficulties law enforcement and prosecutors experience in cases analyzing the odor or appearance of marijuana in order to establish probable cause.  In an interview with the Campbell Law Observer, Glen Allen, a retired Police Chief of the North Carolina State Capitol Police, stated “the legalization of smokable hemp makes enforcing marijuana laws nearly impossible and is a ‘de facto’ legalization of the drug.”

The N.C. Senate, on the other hand, has a different perspective.  Members of their chamber would like to hold off on the smokable hemp ban until December 1st, 2020.  For farmers in North Carolina, hemp has been a great alternative as a cash crop and many farmers have seen a substantial profit—Selling the hemp flower has shown to be worth between 400 and 600 dollars per pound.  Furthermore, tariffs and natural disasters have plagued the agriculture industry, which means a ban on smokable hemp would considerably impact hemp producers.

K.J. Stancil, the Research Assistant for Agriculture Chairman Rep. Larry Strickland, recently spoke with the Campbell Law Observer and stated he believes the Senate leans toward the later ban, because “[it] would provide an opportunity for farmers to collect their crops and take it to market.  It will also allow a chance for stakeholders in law enforcement to find an onsite test, to allow for lawmakers to find a solution for officers to be able to search with probable cause for marijuana.”  On an optimistic note, Mr. Stancil believes “the General Assembly is getting closer and closer to making sure all stakeholders are satisfied.

Why it could continue to be a problem

It seems that a ban on smokable hemp is inevitable, and it is just a matter of when it will go into effect.  So, if the issue of probable cause will be resolved in just a matter of time, why not just push off the possession of marijuana cases until a bill makes it through the Senate?

Indiana, a state that also legalized hemp, enacted Senate Enrolled Act 516 (SEA 516), which banned smokable hemp.  Before the ban was even in effect, seven CBD shops along with the Midwest Hemp Council filed a lawsuit in the United States District Court for the Southern District of Indiana.  The plaintiffs challenged the constitutionality of the statute in SEA 516 that criminalized smokable hemp.  They argued that the 2018 Farm Bill, passed by the Federal government, legalized all hemp products, which restricted the states from criminalizing certain types of hemp.

The District Court agreed with plaintiffs to the extent that they granted their motion for preliminary injunction.  The District Court found that there was no limiting language in SEA 516.  Further, there would be no safeguard for citizens of another state driving through Indiana with legally obtained smokable hemp from their home state.  Therefore, this ban on smokable hemp would violate the Commerce Clause of the United States Constitution.  Additionally, the 2018 Farm bill clearly provided that states may not pass laws that interfere with the right to transport in interstate commerce—including hemp derivatives like hemp bud and hemp flower.

What is probable cause?

Following United States v. Watson and Atwater v. City of Lago Vista, law enforcement is able to make an arrest without a warrant as long as they have probable cause to believe a crime has been committed.  Further, in Carroll v. United States, the U.S. Supreme Court set out the “automobile exception,” which allows warrantless searches of vehicles where there is probable cause, because “the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant [is] sought.”  However, this begs the question: why is a cryptic interpretation of “probable cause”  so important?  There is no universally accepted definition of probable cause because of the unique nature of every individual law enforcement encounter.  Probable cause has been created through case law and indeed remains a construct of the judicial branch.

The Court did tell us in Illinois v. Gates that probable cause “is a practical, nontechnical conception . . . [the probabilities] are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.”  For the present situation, dealing with the odor of marijuana, the North Carolina Supreme Court decided in State v. Greenwood that an odor of marijuana makes it objectively reasonable that marijuana is present when an officer smells it.  Therefore, an officer is allowed to conduct a warrantless search of a vehicle under the automobile exception, because the smell of marijuana creates the probable cause to do so.

Essentially, up until the legalization of smokable hemp, law enforcement only needed the smell of marijuana to establish probable cause for a warrantless search of a vehicle. This was largely due to the fact that marijuana has a distinct smell that is distinguishable from all other smells… that is, except for the smell of smokable hemp.  This means that if law enforcement noticed that particular smell, either there was, or recently had been, marijuana or hemp present.  Since both substances were illegal, a crime was almost certainly in commission.  Assuming only marijuana and hemp emanate that odor, the legalization of hemp means that the presence of that “skunky” smell reduces that near certainty to only a fifty percent chance of the presence of an illegal substance.  The question then becomes, does a 50% chance make something probable?

Where does this leave us?

As noted above, law enforcement and prosecutors have been wary in proceeding with cases that question the probable cause surrounding the odor of marijuana.  This leaves prosecutors and defense attorneys in a haze of mystification regarding how probable cause will be litigated in a court room.  Many recent cases have not made it to that point, as the prosecutors have dismissed the case.  Marijuana and probable cause is a rising issue here in Raleigh, and Lorrin Freeman, Wake County District Attorney recognized this problem.  She has stated that hemp products “make the enforcement of marijuana laws challenging.”

Raleigh attorney John Fanney has direct experience representing clients who have been the victims of warrantless searches where probable cause was reached only by the odor of marijuana.  In one instance, Fanney took hemp products to the District Attorney’s office before trial, saying, “[h]ere’s what we’re dealing with.”  Once the Assistant District Attorney was able to personally see the similarities between smokable hemp and marijuana, the charges for that case were dismissed.

Looking forward, there are many possession of marijuana cases dealing with this exact issue that are waiting to go to court here in Wake County, and all over the Country. The most publicized case awaiting trial in the greater Raleigh area, concerns Amanda Furstonberg, a Johnston County citizen.  In Furtonberg’s case, law enforcement knocked on her window and asked her, “where is the weed?”  After telling the officers she did not have marijuana, the officers told her, “we don’t believe you, so either we’re going to come in or we’re going to get a warrant and it’s going to be worse on you.”  At this point, Ms. Furstonberg allowed the officers inside and showed them where she kept her smokable hemp.  Nevertheless, the officers proceeded to arrest her for a schedule one misdemeanor for possession of marijuana.

Ms. Furstonberg’s case was set for the month of June of 2019.  During an interview with the Campbell Law Observer, Mr. Fanney said that he would be taking on Ms. Furstonberg as a client.  There has been no reporting on an outcome of this case, and a search of the North Carolina Judicial Branch court date calendar yields no cases under the name Furstonberg.

Comparing it to other procedural situations

The dilemma stemming from smokable hemp and marijuana and their matching identifiable features is certainly a case of first impression.  However, one interesting comparison can be made to possession of firearms and the complexities surrounding law enforcement’s interactions during a Terry stop.  Police officers are allowed to conduct investigatory stops of individuals when they have reasonable suspicion that “criminal activity is afoot.”  Reasonable suspicion is a lower standard than probable cause.  Therefore, if there is an issue in determining if there is reasonable suspicion, there will undoubtedly be an issue in deciding if there is probable cause, because it is harder to obtain.

For a long time, the possession of a gun was all a police officer needed to establish reasonable suspicion to conduct a Terry stop.  It has become increasingly difficult for officers to prove reasonable suspicion with the amount of open carry laws governing states across the country. If a citizen is legally entitled to carry a weapon, then how can the carrying of that weapon create any suspicion of criminal activity?  Anytime an officer comes across a citizen possessing a gun, there are only two options.  Either, the citizen is legally possessing the weapon or he is illegally possessing the weapon.

Courts have decided that this fifty-fifty chance of illegal possession is enough of a probability to establish reasonable suspicion for an officer to initiate a stop under Terry.  For example, in 2012 the United States Court of Appeals for the Eleventh Circuit decided in United States v. Lewis that knowledge of firearm possession is enough to establish reasonable suspicion that a crime was being committed.

While courts have decided that the one-of-two options scenario with firearms is enough to establish reasonable suspicion, it is not enough to establish probable cause for a warrantless search.  In comparison to the situation of smokable hemp and marijuana, it is analogous in the sense that the smell of marijuana only presents two options.  Either, there is, or recently was, marijuana on the premises, or there is, or recently was, smokable hemp on the premises.  Just like the firearms scenario, one option is completely legal and the other option would be a crime.

The difference, as noted above, is that a warrantless search requires probable cause, while a Terry stop only requires reasonable suspicion.  It is conceded that the odor of marijuana or hemp does establish reasonable suspicion of criminal activity, just as the presence of a firearm establishes reasonable suspicion.  However, neither situation is enough to create probable cause by itself.

The General Assembly has a complex issue to solve.

All things considered, the General Assembly has a complex issue to solve.  On the one hand, it leaves serious questions for law enforcement and legal practitioners arguing probable cause.  On the other hand, North Carolina has always been a state that prides itself on a robust agricultural economy, and recently hemp has played a large role in maintaining the State’s prominent status.  Balancing the impeding policy arguments while also protecting law enforcement and farmers is no easy task.  Many times, the legislators borrow ideals set out in other areas of law, but they will be strained to find a well-fit comparison in this sticky situation.

While it’s promising to hear that the General Assembly feels they will be able to come to a solution, citizens must remember one single Act is not the end of the road. The Act must be effectively drafted to ensure there is not a situation mirroring the one in Indiana. The hemp dilemma is and will continue to be a legislative battle for years to come.

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About Kevin Cline (3 Articles)
Kevin is a third-year student at Campbell School of Law and currently serves as an Associate Editor of the Campbell Law Observer. Hailing from the foothills of the Tar Heel State, he is from Conover, North Carolina. Prior to law school, Kevin majored in Political Science and History at Centre College in Danville, Kentucky. Beginning the summer after his first year in law school and continuing through his second year, he interns at Tarlton|Polk PLLC where he takes part in criminal defense matters at both the State and Federal level. While at Campbell Law, he is a member of The Campbell Law Softball team and is pursuing an LL.M in Legal Practice through Nottingham Trent University. He is interested in criminal law and procedure, real estate transactions, and construction law.