Recent Case Law. Not only do we have the new legislation discussed above; there is a new case as well. The Court of Appeals released its second decision referencing the potential issues surrounding probable cause and cannabis this week. I previously noted State v. Parker, 277 N.C. App. 531, 541 (2021), which observed that the existence of legal hemp may affect probable cause determinations based on the alleged odor of marijuana (though finding probable cause on the facts of the case). In State v. Highsmith, 2022-NCCOA-560, ___ N.C. App. ___ (2022), we get a similar result.
Officers conducted a canine sniff during a traffic stop, leading to the discovery of apparent marijuana under the driver’s seat. The defendant challenged the search, arguing in part that an alert by a canine trained to detect THC cannot supply probable cause in light of legal hemp. The State pointed to additional factors in support of probable cause, such as inconsistent statements of the driver and passenger, the defendant’s prior history of drug crime known to the officers, and evidence that none of the occupants were the registered owner of the vehicle, and argued that it was a “K-9 sniff plus” case. The trial court agreed with the State and denied the motion to suppress, finding probable cause under the totality of circumstances. The defendant was ultimately convicted of felony possession of marijuana at trial and subsequently pled guilty to obtaining habitual felon status.
The trial attorney did not object to the search at trial, waiving appellate review of the issue. Although it appears that appellate counsel sought plain error review of the issue (the brief is here), the Highsmith court found that the search was not properly challenged on appeal. “The defendant does not argue on appeal that the search of the vehicle was unconstitutional.” Highsmith Slip op. at 6. Instead, the court cast the defendant’s argument as a challenge to the sufficiency of the findings supporting the denial of the motion. Rejecting that challenge, the court observed: “Defendant overlooks Conclusion of Law 7, which explicitly states that Defendant’s ‘rights against unreasonable detentions, searches and seizures . . . have not been violated.’” Id. at 8. Because the finding by the trial court that the defendant’s constitutional rights were not violated was sufficient, the Court of Appeals affirmed the denial of the motion to suppress.
Given the posture of the case and the seemingly narrow holding of the court, I’m not sure how much precedential value it has as far as probable cause decisions involving suspected marijuana. If anything, the trial and appellate courts in Highsmith and Parker seem to be applying an observation-plus standard, whereby something more than the mere sight or odor of cannabis (or canine alert) will be necessary to establish probable cause to search for or seize suspected marijuana (a standard I previously suggested may be appropriate in light of the current state of affairs).
In any event, to paraphrase Mark Twain, media reports concerning the demise of probable cause issues surrounding hemp versus marijuana are, at best, premature. Other cases more neatly raising the probable cause issue (and other issues) are coming down the pipe from the appellate division, and it seems likely that more are to come–some of which will presumably be in a different procedural posture and potentially subject to a different standard of review on appeal. If and when that happens, you can read all about it here. In the meantime, I encourage defenders to continue raising and litigating this and other issues with marijuana prosecutions in the state.
As always, if you have any questions, concerns, or feedback, I can be reached at email@example.com.