Is it cool to use the smell of cannabis as probable cause to search a car? While most readers likely answer with a resounding “no,” just such a question is currently being hashed out, pun intended, by courts in North Carolina, a state that historically leans conservative. 

On Tuesday, the North Carolina Court of Appeals overturned a lower court’s ruling to exclude evidence gathered during a traffic stop. This decision comes amidst ongoing legal debates regarding whether the mere scent of cannabis alone constitutes enough grounds for police to conduct a search of a vehicle.

While hemp is legal in North Carolina, the Tar Heel state has not joined the legions of others in legalizing cannabis. But hemp’s legal status is at the crux of the case, bringing about the current legal debate. However, in 2021, North Carolina clocked in at third place for the highest level of cannabis arrests, the incident in question could be one of thousands.

On May 17, 2021, a Charlotte-Mecklenburg Police Department officer conducted a traffic stop of Antonio Demont Springs, citing a suspicion regarding his vehicle’s license plate. The court document noted Springs’ apparent anxiety as the officer neared the vehicle, as evidenced by his trembling hands while handling over his paperwork.

The cop discovered that Springs was operating the vehicle with a revoked license, and further investigation revealed that the license plate was a fake. When questioned about the scent of cannabis, Springs denied having smoked in the car. “I just got the car from my homeboy,” Springs told the officer. “That’s probably why.”

The cop in question then asked Springs to get out of the vehicle. The officer opened a Crown Royal bag and found a digital scale, “a green leafy substance,” per the opinion, two baggies of white powder, and baggies of pills. Just reading about such a run-in with the law is enough to make one’s hands shake. 

Springs faced charges including possession of drug paraphernalia, drug trafficking, and intent to sell or distribute a controlled substance. He challenged the legality of the evidence obtained by the cop, arguing that there was no probable cause for the car and his Crown Royal bag search. Springs pointed out that in North Carolina, hemp is legal and cannot be visually or olfactorily distinguished from its euphoria-inducing marijuana relative. Therefore, he argued, the mere smell of marijuana alone should not be enough grounds for police to search vehicles in the state. 

Springs cited a memo from the State Bureau of Investigation, which clarifies that while industrial hemp and marijuana are the same plant species, as hemp typically does not contain enough THC to be psychoactive, not to mention, is legal, police should not be able to pull folks over for what may be deemed a suspicious smell alone. The memo highlights that the legalization of hemp presents challenges for law enforcement, as there is no straightforward method for police to differentiate between hemp and marijuana. Such a fact may be tricky for cops, but it’s a win for citizens and anyone interested in lowering the incarceration rate in North Carolina. 

The trial court sided with Springs. They concluded that since hemp is legal and has a similar odor to marijuana, the smell alone does not justify sufficient cause for a police vehicle search. 

But the Court of Appeals disagreed, writing: “This Court and our state Supreme Court have repeatedly held that the odor of marijuana alone provides probable cause to search the object or area that is the source of that odor,” wrote Judge Toby Hampson, a Democrat, joined by Judge Jefferson Griffin, a Republican. Hampson did note a Court of Appeals decision from 2021 that reads: “The legal issues raised by the recent legalization of hemp have yet to be analyzed by the appellate courts of this state.”

However, in Springs’ situation, unfortunately for him, the officer had multiple other factors indicating probable cause, such as his comment about his friend potentially having smoked weed in the car, not to mention the invalid license and a fake license plate. Hampson elaborated that the policeman was aware of other elements besides the smell, concluding that the trial court was mistaken in trying to suppress the evidence obtained from the search.

He also criticized the state’s attorneys for not adhering to the Rules of Appellate Procedure, as they failed to “provide any basis for appellate review” in their submission.

It’s one of many incidents that will undoubtedly continue to play out as the U.S. reckons with and reassess the ongoing and evolving cannabis laws. During September of last year, the State of Minnesota Court of Appeals affirmed that cannabis odor doesn’t constitute enough probable cause alone to search a vehicle. However, in Wisconsin, the reverse ruling came in, as courts decided despite the legality of CBD, cannabis odor was enough to search a car.

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The US Open is not played on grass, but there was apparently still plenty of green on Monday as the year’s final tennis grand slam began in New York. 

On the women’s side, the eighth-seeded Maria Sakkari lost in an opening round upset to the unseeded Spaniard Rebeka Masarova in straight sets –– a match that the Greek Sakkari let slip away.

Leading 4-1 over Masarova in the first set, Sakkari reportedly complained to the chair umpire about a distinct smell that lingered over the court.

“It was weed,” Sakkari said after the match, as quoted by the Associated Press.

Sakkari never won another game in that set, ultimately losing in straights, 6-4, 6-4, to Masarova.

“The smell, oh my gosh,” Sakkari said. “I think it’s from the park.”

The US Open, held annually in Flushing, Queens, unfolds in a very different setting than most tennis tournaments. Nearby subway trains can be clearly heard inside the venues, and the area –– also home to the New York Mets’ stadium and a park –– attracts plenty of revelers. 

Since 2021, when recreational marijuana was legalized in New York, the familiar odor of cannabis has also become part of the US Open experience. 

At last year’s Open, Australian men’s player Nick Kyrgios also noted the aroma during his second-round match.

“You don’t want to remind anyone not to do it or anything?” Kyrgios said to the umpire in the match, which he won in four sets.

After the match, Kyrgios said that the smell is a hindrance for him on the court.

“People don’t know that I’m a heavy asthmatic so when I’m running side to side and struggling to breathe already, it’s probably not something I want to be breathing in between points,” Kyrgios said at the time.

CNN reported at the time that the umpire in Kyrgios’ match “reminded fans to refrain from smoking around the court as play got back underway.”

Sakkari, for her part, did not have many complaints about the smell, and downplayed its role in her loss on Monday.

“You don’t really think about it, because all you care is just to win the match,” Sakkari said, as quoted by the Associated Press. “I smelled it, but that was it. Like, it wasn’t something that I paid attention to.”

“Sometimes you smell food, sometimes you smell cigarettes, sometimes you smell weed,” she added. “I mean, it’s something we cannot control, because we’re in an open space. There’s a park behind. People can do whatever they want.”

The USTA Billie Jean King National Tennis Center, which plays host to the US Open every year, has a strict policy against smoking on the grounds.

“Refrain from smoking, as this is a smoke free environment,”  reads the venue’s code of conduct.

Adult-use marijuana was made legal in the Empire State in 2021, when then-Gov. Andrew Cuomo signed a bill into law ending the prohibition. The law immediately enabled adults aged 21 and older to toke up wherever smoking is prohibited. 

But Cuomo’s successor, current New York Gov. Kathy Hochul, signed a bill into law last year that limits where New Yorkers can get high.

The bill explicitly prohibited smoking “in all state-owned beaches, boardwalks, marinas, playgrounds, recreation centers, and group camps.” 

“Smoking is a dangerous habit that affects not only the smoker but everyone around them, including families and children enjoying our state’s great public places,” Hochul said in a statement after signing the bill. “I’m proud to sign this legislation that will protect New Yorkers’ health and help reduce litter in public parks and beaches across the state.”

Hochul’s office explained at the time that many “municipalities and local governments already have restrictions or bans on smoking in public spaces. This additional penalty will enforce a statewide prohibition and includes a fine that will be collected by localities,” 

“In addition to the health risks posed by secondhand smoke, cigarette butts are a major environmental hazard due to the non-biodegradable filters that are discarded. They are the leading item found during cleanup projects. Through this prohibition, parks and beaches will be kept cleaner and safer as will our local ecosystems,” the governor’s office explained in the press release issued at the time.

Under the new law, which applies both to smoking tobacco and cannabis, violators will be subject to a fine of $50.

New York’s legal cannabis market officially launched late last year, with the opening of a dispensary in the East Village neighborhood of Manhattan.

Under the state’s marijuana law, the first 100-200 dispensary license holders will be individuals with prior pot-related convictions. 

“New York State is making history, launching a first-of-its-kind approach to the cannabis industry that takes a major step forward in righting the wrongs of the past,” Hochul said last year. “The regulations advanced by the Cannabis Control Board today will prioritize local farmers and entrepreneurs, creating jobs and opportunity for communities that have been left out and left behind. I’m proud New York will be a national model for the safe, equitable and inclusive industry we are now building.”

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Tex-Mex restaurant E-Bar has been the talk of the town for its anti-stoner policy that is spelled out in a sign posted on its window: “If You Have The Smell Of Marijuana On You We Will Not Serve You.” (“Marijuana” is underlined for good measure.)

The signage has drawn recent attention, including in a story published Wednesday by The Dallas Observer.

But the owner of the restaurant, Ernie Quinlantan, told the publication that the policy has actually been enforced for five years. The Observer noted that sometimes “when the windows are cleaned, the sign gets taken down, then is put back up in a place that is not quite so obvious.”

“People reeking of marijuana, it just ruins everybody’s experience around them, you can’t possibly have a great meal with someone who has that much odor,” Quinlantan told the Observer.

Quinlantan also downplayed the significance of the rule, saying that most customers are unbothered.

“Some people have something to say, it depends on the person, but most of the time it’s not an issue,” Quinlantan said.

The rule has not gone over well on social media, however. E-Bar’s Instagram account is filled with announcements, including multiple posts reminding customers to wear a mask at the restaurant. Another proudly displays an award naming E-Bar the best Tex-Mex restaurant in Dallas three years ago. 

But the comment sections of many of the account’s posts have been littered with sarcastic remarks and outright anger directed at the rule.

“Congrats on being the only [Tex Mex] restaurant to monetize the Latino culture while also diminishing it by supporting stigmas rooted in associating cannabis with the Latino community by calling it marijuana,” wrote one Instagram user. “Do you think none of your staff or family consume cannabis?”

“Do you have a list of smell restrictions?” snarked another commenter “Also, is the person smelling customers certified by the SCA (Sniffers Commission of America)?”

Recreational cannabis is illegal in the Lone Star State, of course, but change could be afoot.

Last November, voters in five Texas cities approved ballot measures to decriminalize pot. In one of those cities, Denton, officials ignored the will of the electorate and voted in June “against adopting the ordinance that would have decriminalized marijuana.”

Polls show that a majority of Texans are in favor of lifting the prohibition on marijuana use. 

A Dallas Morning News/University of Texas at Tyler Poll last August found that 55% of registered voters in Texas support the legalization of adult-use cannabis. 

Thirty-four percent said they “strongly” support the legalization of recreational cannabis for adults, and 21% said simply that they support the change, according to the poll.

Fourteen percent said they were simply opposed, with 21% saying they were “strongly” opposed. Another 9% said they neither supported nor opposed the idea.

So far, the legalization effort has not gained much traction among Texas lawmakers in Austin. But the legislature has taken steps to broaden the state’s medical cannabis program.

In April, members of the state House of Representatives signed off on a bill that would allow physicians to recommend medical cannabis as an option for chronic pain treatment rather than opioids.

“Passage of this legislation will provide qualified patients with a state-sanctioned option to access a therapy that has proven to offer significant benefits,” the NORML chapter of Texas said at the time. “Medical cannabis is an objectively safer alternative to the array of pharmaceutical drugs that it could potentially replace. I urge my fellow Texans to voice their support for this important legislation and to reach out to their Senators to encourage their backing as it moves through the legislative process.”

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The Wisconsin Supreme Court ruled this week that the scent of cannabis alone constitutes probable cause to justify a search by police, despite the legalization of other products such as hemp that have similar odors. The court’s conservative majority ruled in a 4-3 decision that police officers in Marshfield, Wisconsin, had enough probable cause to search a defendant after detecting the smell of cannabis in the car he was driving and declined to exclude evidence discovered during the warrantless search. The ruling overturns two lower court rulings that found the evidence gained in the search was inadmissible because officers could not be certain if they smelled marijuana, which is still illegal under Wisconsin state law, and hemp, an agricultural crop that was legalized by the federal government with the 2018 Farm Bill.

The court handed down the decision on Tuesday in the case of Quaheem Moore, a man who was pulled over for speeding in Marshfield by two police officers in 2019. In their report, the officers state that while talking to Moore, they detected a strong odor of burnt cannabis emanating from the vehicle. When questioned about the odor, Moore told the officers that he had a CBD vaping device and noted that the vehicle was a car that had been rented by his brother. 

Scent of Cannabis Cited as Cause for Search

Although they admitted that they did detect the odor of marijuana on Moore, the officers cited the scent of cannabis coming from the car as cause to search the vehicle and Moore. The officers stated that during the search, they noted that Moore’s belt buckle appeared to be askew and upon looking closer, discovered a bulge in his pants. After closer examination, the officers discovered a hidden pocket inside the zipper of Moore’s pants, where they discovered packets of fentanyl and cocaine.

Police then arrested Moore and charged him with possession of narcotics, although he was not charged with possession of marijuana. Moore’s lawyers argued that because the police officers did not smell marijuana on Moore and because of the legality of CBD and hemp, which has an odor indistinguishable from marijuana, the police officers did not have probable cause for the search. Thus, the drugs found in the search should be excluded from evidence.

A circuit court judge and an appeals court agreed and ruled that the evidence discovered in the search was not admissible. Prosecutors appealed the rulings, saying the lower courts erred when they ruled the evidence inadmissible for trial.

Decision Overrules Lower Courts in Wisconsin

The Supreme Court disagreed with the previous rulings, overruling the lower court decisions and deciding the evidence gained in the search could be used in court. In a majority opinion written by Justice Brian Hagedorn, the court’s conservative majority found that because Moore was the only person in the vehicle, the police could reasonably assume that he “was probably connected with the illegal substance the officers identified.”

The decision relied on a 1999 Supreme Court decision that found police could arrest a driver because they connected him to the odor of cannabis in the car he was driving. That ruling said that the “unmistakable” scent of a controlled substance was evidence that a crime had been committed.

But the Wisconsin Supreme Court’s liberal minority questioned the 1999 ruling and its relevance to Moore’s case, saying that the police officers did not have strong evidence that the cannabis odor was coming from Moore. They also noted that the earlier ruling is outdated and does not take into account the subsequent legalization of hemp and CBD. 

“Officers who believe they smell marijuana coming from a vehicle may just as likely be smelling raw or smoked hemp, which is not criminal activity,” Justice Rebecca Frank Dallet wrote in a dissenting opinion that was joined by two additional justices.

After Tuesday’s Supreme Court ruling was released, Moore’s attorney, Joshua Hargrove, warned that the decision could allow law enforcement offices to justify searches based on unreliable conclusions without being held accountable in court.

“This opinion could subject more citizens engaged in lawful behavior to arrest,” he said in a statement quoted by the Associated Press.

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Members of the Illinois House of Representatives are considering a bill that would ban police searches of vehicles based solely on the odor of cannabis. The measure, Senate Bill 125, has been assigned to two House legislative committees after gaining the approval of the Illinois Senate in a 33-20 vote late last month.

Democratic Senator Rachel Ventura, the lead sponsor of the legislation, said that SB 125 will help people who use cannabis legally avoid searches by law enforcement simply because police perceive the odor of marijuana.

“People—especially people of color—are unnecessarily pulled over far too often,” Ventura said about the legislation in a statement. “The odor of cannabis alone shouldn’t be one of those reasons (for their car to be searched). Cannabis is legal in Illinois and it’s a pungent scent that can stick to clothes for extended periods of time.”

If passed by the House and signed into law by Democratic Governor J.B. Pritzker, Senate Bill 125 would amend the Illinois Vehicle Code to state that “the odor of burnt or raw cannabis in a motor vehicle by itself shall not constitute probable cause for the search of the motor vehicle, vehicle operator, or passengers in the vehicle,” provided that the vehicle is operated by an individual at least 21 years old. 

At a press conference on April 11, Democratic Representative Jehan Gordon-Booth said that Senate Bill 125 is needed to fully implement Illinois’ recreational marijuana legalization bill, which was passed by state lawmakers and signed by Pritzker in 2019. Under the legislation, adults 21 and older are permitted to possess up to 30 grams (just over one ounce) of cannabis and up to five mature cannabis plants. Non-residents of Illinois at least 21 are permitted to possess up to 15 grams.

“It was incredibly important as we were looking to legalize this product that has clearly demonized so many communities,” said Jehan Gordon-Booth.

Weed In Cars Must Be Inaccessible

Senate Bill 125 also requires that cannabis possessed by drivers or passengers in motor vehicles driven on state roadways be kept in a sealed or resealable, child-resistant container in a secure location not accessible.

An amendment to the original bill limits the protection from vehicle searches based on the odor of marijuana to autos operated by adults 21 and over. When the change was made to allow searches of vehicles operated by younger drivers, the Illinois chapter of the American Civil Liberties Union (ACLU) dropped its support of the bill and instead adopted a neutral stance on the legislation.

“We do have concerns that the amendment to the bill creates a workaround, or a loophole, that could have the effect of incentivizing police to target youth for unnecessary traffic stops or vehicle searches,” Atticus Ballesteros, an attorney with the ACLU of Illinois, told the Rockford Register Star.

Ballesteros added that the ACLU of Illinois originally supported the bill because there are numerous reasons a vehicle may smell of cannabis.

“And to us, that applies irrespective of age,” Ballesteros said.

Bill Opposed By Law Enforcement

Law enforcement officials including Illinois Sheriff’s Association executive director Jim Kaitschuk oppose Senate Bill 215 and are calling on lawmakers in the House to reject the measure barring vehicle searches based solely on the odor of weed.

“You can’t have endless marijuana in a vehicle,” Kaitschuk told The Center Square. “It’s only legal to a certain amount. Are we also going to inhibit the ability to intervene when the smell of burnt cannabis may be coming from the vehicle, when the motorists may actually be impaired?”

Kaitschuk added that he is concerned that if passed, the legislation could make it more difficult for law enforcement officers to address the illicit market for cannabis and other drugs.

“I think this bill will have the ability to impact illicit markets in terms of people being able to carry more of the drug than they should,” he said. “Plus, folks may traffic marijuana cannabis to mask other drugs that may illegally be in the vehicle.”

Kaitschuk added that he thinks the bill is a solution to a problem that does not exist.

“We’re not just stopping people because we smell cannabis,” he added. “That’s not a probable cause to stop a car. There has to be some other action or activity that occurred in terms of violation of the Vehicle Code that got us there.”

Senate Bill 125 was passed by the Illinois Senate on March 30 and is now pending in the state House of Representatives, where it has been assigned to the Rules Committee and the Executive Committee. A hearing on the legislation has been scheduled by the Executive Committee to be held at the state capitol in Springfield on April 19.

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The Maryland House of Delegates passed a bill on April 10 that bars police from using the odor of cannabis as the basis for the search of a person or automobile. The measure, House Bill 1071, also lowers the civil fine for consuming cannabis in public to $50. 

The bill was approved by the Maryland House by a vote of 101-36 in the closing minutes of the legislative session Monday night after passing in the state Senate with amendments earlier in the day. The legislation now heads to the desk of Democratic Gov. Wes Moore for consideration.

Bill Bans Searches Based on Odor of Weed

Under House Bill 1071, law enforcement officers would be prohibited from using the odor of raw or burnt cannabis as probable cause to search a person or vehicle. Supporters of the legislation maintain that the bill is required to fulfill the intent of Question 4, a ballot referendum to legalize recreational marijuana that passed with nearly two-thirds of the vote in the midterm elections last year. House Bill 1071 also bans searches based on possession of a legal amount of marijuana or the presence of cash in the proximity of cannabis without additional evidence showing an intent to distribute marijuana.

Question 4, which takes effect on July 1, legalizes possession of up to 12 grams of cannabis for personal use. Possession of between 12 and 20 grams will be a civil offense, punishable by a fine of up to $250. Possession of cannabis in quantities greater than 20 grams will be a misdemeanor carrying penalties including up to six months in jail and a fine of up to $1,000.

Because possession of cannabis will still be illegal in amounts greater than 12 grams, legalization advocates say House Bill 1071 is necessary to protect the rights of legal cannabis users. The legislation follows a court decision from the Maryland Supreme Court last year that upheld police authority to briefly detain and search individuals based on the odor of cannabis, despite the state’s legalization of medical marijuana in 2013. Assistant Maryland Public Defender Michele Hall, who unsuccessfully argued the Supreme Court case, told the House Judiciary Committee last month that police will continue to conduct searches based solely on the perceived odor of cannabis.

“Legalization alone did not fix this problem,” Hall told the House Judiciary Committee last month, according to a report from the Maryland Daily Record.

“As long as odor supports Fourth Amendment intrusion, Marylanders legally engaging in the cannabis market are at risk,” added Hall. “Alleging odor of cannabis alone is nothing more than a blank check for police to intrude upon a person’s right to privacy in the hopes of finding something criminal, and the Fourth Amendment requires more.”

The legislation to ban police from using the odor of marijuana as probable cause for a search is also supported by the Maryland chapter of the American Civil Liberties Union.

“Marijuana odor stops and searches not only pose serious risk to people’s Fourth Amendment rights, they enable racial profiling and dangerous and unnecessary police interactions,” Yanet Amanuel, the chapter’s public policy director, told the Judiciary Committee in March.

“This is why it is critical that the legislature must step up and ensure that the law and police practices are consistent with the reason you all said you support legalization of marijuana and, most importantly, the law reflects the will of the people,” Amanuel added. “Marylanders should not fear police interactions because of a lingering odor of a now legal substance.”

Meg Nash, a partner at the cannabis and psychedelics law firm Vicente LLP, said that legislation such as House Bill 1071 is needed to ensure that the legalization of cannabis is enforced equally.

“It’s encouraging to see Maryland tackling the harmful impacts of the war on drugs, not only through adult use legalization, but by revisiting sections of their criminal code,” Nash wrote in an email to High Times on Wednesday. “These types of laws are necessary to protect the rights of individuals in states, like Maryland, that have legalized cannabis for adult use and show the state’s commitment to addressing harms to communities that have been disproportionately impacted by prohibition.”

House Bill 1071 also reduces the fine for public consumption of cannabis from $250 to $50. After receiving final passage in the closing minutes of the current legislative session Monday night, the bill has been sent to the governor’s desk for consideration.

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Light one and smoke along with this potent playlist of classic songs featuring lyrics about dank weed.

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Lock down those terps with these tips.

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Homegrow, USA: Bessemer city council buys the Nasal Ranger to check on an increasing number of odor complaints.

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