Standing in front of the seven justices of the North Carolina Supreme Court, attorney Benjamin Kull interrupted his oral arguments with an unexpected prop. Pulling out a plastic baggie of something that looked a lot like marijuana, he all but dared the justices to have him searched or arrested.
They didn’t. And that proved Kull’s larger legal point, at least in his telling: Nobody in the room — not the experienced law enforcement officers providing security, not the state’s most vaunted legal minds — had any idea if what he was holding was illegal pot or perfectly legal hemp.
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The two plants look and smell exactly the same; their only difference is in microscopic chemical composition. And so when North Carolina legalized hemp several years ago, the State Bureau of Investigations itself said that police officers would no longer have probable cause to search and arrest people based solely on the distinctive smell or sight of that pungent, leafy green substance.
But police have largely ignored that guidance and continued searching and arresting people based on nothing more than a sniff.
Some judges around the state pushed back at first. But recently, a growing number of court rulings have given police more and more leeway to go back to searching and arresting people simply based on an odor or sight, with no other indication of whether a crime was actually being committed. Kull was in court this week fighting to reverse that trend, asking the Supreme Court to put more safeguards on the civil liberties of people who legally use hemp.
The case is the first time the state’s highest court has taken up the question since the legalization of hemp in 2019. They made no immediate ruling, but whatever the justices ultimately decide could affect any North Carolinian who buys, sells or uses legal, smokable hemp.
“The people of North Carolina, through their elected legislative representatives, have made a paradigm-shifting choice,” Kull told the justices during Tuesday’s oral arguments. “They have created a legal form of cannabis in North Carolina. … The question for this court is whether you are going to impose a tax on that lawful behavior. Not a tax that people will be forced to pay with money, but a tax that people will be forced to pay with their constitutional rights.”
The justices were active during oral arguments, indicating a strong interest in the case and its outcome, as they directed numerous questions to Kull or his opposing counsel Special Deputy Attorney General Zachary Dunn, who argued on behalf of the state.
Dunn said police should have near-unfettered power to search people and their cars or other property if they think they smell or see either hemp or marijuana. Just because hemp is legal and looks like marijuana doesn’t mean that no one can ever be stopped again for marijuana, he said. For instance, he said, plenty of legal substances look like white powder. But so do some drugs. And so if a police officer sees a baggie of white powder, he can stop that person to investigate further to see if it’s cocaine or another illicit substance.
Even if someone has a receipt showing they bought hemp legally at the store, Dunn said, that shouldn’t mean anything. Police officers should still be allowed to arrest them for having marijuana if the police officer thought they had marijuana, he said. Any other result, he added, would empower drug dealers.
“Anyone who is transporting or owns these illegal substances, marijuana, would carry around a bag of legal hemp to dispel the probable cause,” Dunn said. “So we would say that, even if a driver provides this receipt, there's still a fair probability … that criminal activity is afoot, and so we would say the odor would still provide probable cause.”
Chief Justice Paul Newby, a Republican, acknowledged the logic of that argument.
“Certainly somebody could see, for example, a pill being exchanged, and that could be probable cause of an illegal drug activity,” Newby said. He acknowledged that some pills are perfectly legal to give to others but indicated he trusted police officers to tell the difference between legal and illegal activity. But to make that call, he indicated, the officers would need to have probable cause in the first place.
Republican Justice Richard Dietz appeared more skeptical of the state’s argument that police officers should be allowed to ignore any other evidence and arrest people based on nothing but the smell or sight of something that might be legal.
“So, the officer’s walking down the street here in Raleigh, past the Convention Center,” Dietz said, setting up a hypothetical. “He says, ‘I know that odor. I've smelled marijuana.’ And he looks over there at the Convention Center — giant banner, it says, ‘Welcome, guests: International Hemp Smoking Convention.’”
Dietz then asked Dunn directly: “Is the state's position, there's a fair probability there's criminal activity for it? You'll get a warrant, probable cause, to go in and start arresting people at the hemp smoking convention?”
Dunn said yes.
“It is a tough case,” Dunn said. “It's a difficult case. But we would say it would still get us across the line.”
Democratic Justice Anita Earls expressed concern over the likelihood of people being arrested for a perfectly legal substance — made more complicated by the fact that the State Crime Lab lacks the technical ability to tell marijuana and hemp apart as well. So not only do they look and smell the same, she said, but proving which is which could also require hiring a private lab to do the work.
“When people are arrested, that has significant consequences,” Earls said, adding that people could be forced to spend money on lawyers, or spend time in jail and possibly lose their jobs, all for perfectly legal behavior.
Dunn said that wasn’t a concern to the state, since anyone who gets arrested would eventually be guaranteed a day in court.
“The officer can use his discretion but can arrest that person if the officer believes that it's an illegal substance,” he told Earls. “And then, at trial, the state has to prove beyond a reasonable doubt that it is an illegal substance. So the answer there is the criminal justice system and the court system.”
Kull said those kinds of answers simply aren’t acceptable, and that the state’s argument risks leading to potentially millions of North Carolinians having their rights violated and wrongfully being given a criminal record.
But he was also clear that he wasn’t asking the Supreme Court to create a legal standard that would completely prohibit cops from searching or arresting people on suspicion of marijuana, either. Rather, Kull said, he thinks the court should order a stricter standard where police officers have to consider the “totality of the circumstances” in which they encounter someone.
In other words, he said, if someone was found with a green leafy substance as well as a scale for weighing it, he said, then the police would have probable cause of illegal drug activity. But if there was no additional evidence — or if there was evidence pointing to legal use of hemp — then he believes police shouldn’t have probable cause to make a search or an arrest.
To illustrate that point, Kull pulled out the baggie and waved it at the justices. He referred to it as cannabis, the scientific name of both marijuana and hemp, but indicated it was legal hemp.
He then waited to see if he’d be searched and possibly arrested on the spot because it looked and smelled like marijuana — just as the state had argued should be the appropriate reaction.
“This is cannabis,” he said. “So if he's right … any of these officers in here right now can arrest me — can search my briefcase, can seize my property, and can even go into court, swear under oath that they think that this is contraband, and get me convicted. And so, if the people decided that I can legally possess this — well, then why should that happen?”