Hemp is legal in NC. Should smell be enough for police to search you?

Hemp looks and smells like marijuana.

So how can police tell them apart? And should the odor of marijuana alone still be enough to justify a warrantless search?

The North Carolina Supreme Court is now weighing three cases that raise that very question.

In all three cases heard Tuesday, officers had said they detected the smell of marijuana, leading them to conduct searches that led to arrests and charges.

Prior cases, such as 1981’s State v. Greenwood, had held that the smell of marijuana provided probable cause to search a vehicle. But that was before hemp was first legalized industrially under a pilot program in 2015, and permanent legalization passed in 2022 following federal action.

“The question for this court is whether you are going to impose a tax on that lawful behavior, right, but 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,” said Benjamin Kull, the attorney representing two of the appellants who asked the high court to review their cases.

Meanwhile, Special Deputy Attorney General Zachary Dunn, who represented the state in two of the cases, emphasized that “probable cause does not demand any showing that a belief be correct or more likely true than false.”

Dunn told the justices that if all three cases hinge on whether the odor of marijuana alone still provides probable cause after hemp legalization, then all should “come out the same way. Probable cause existed and the searches were proper.”

In broad strokes, in all three cases the state argued the key question was whether officers believed they smelled marijuana — not whether the substance was legal hemp or illegal marijuana. Prosecutors also pointed to other circumstances surrounding the cases as giving officers probable cause for a search, even without the smell.

The men challenging their convictions countered through their attorneys that hemp’s legalization makes odor unreliable and that relying on it gives police too much leeway at the expense of constitutional rights.

They also cited a North Carolina State Bureau of Investigation memo written prior to hemp legalization warning that hemp and marijuana look and smell the same, making it “impossible” for law enforcement to use the appearance or odor of marijuana to develop probable cause.

The Fourth Amendment protects people from unreasonable searches and seizures by the government. It requires probable cause — meaning a fact-based, reasonable belief that a crime has been committed or that evidence is present — before an arrest, search, or warrant.

The cases heard Tuesday were State v. Schiene, State v. Dobson and State v. Rowdy.

More details on cases

In Codie Bruce Schiene’s case, the dispute stems from a 2020 search in a Charlotte hotel parking lot.

Sgt. William Buie said he smelled marijuana coming from Schiene’s SUV, though another officer at the scene did not. Both later admitted they could not tell hemp from marijuana by smell. Buie handcuffed Schiene and his nephew and searched the car, finding jars of marijuana, a digital scale and a handgun. Schiene pleaded guilty to possessing a firearm while a felon, possessing a stolen firearm and attaining habitual felon status, Kull’s petition for review to the high court says.

A judge had found that the odor alone created probable cause for a warrantless search.

A split Court of Appeals upheld his conviction, saying the odor and other factors like the SUV’s parking position and the late hour gave police probable cause.

Arguing for Schiene, Kull said the trial judge misapplied the “odor alone” doctrine. “The trial court was clear that the only reason the trial court ruled in favor of the government is because the trial court believed — wrongly, it turned out — but the trial court believed … that the odor of cannabis, still on its own, provides probable cause,” he said. He called for the case to go back to the lower court considering this error so new evidence and facts could be searched and accounted for. Dunn countered that odor still points to “a fair probability” of criminal activity.

In Tyron Lamont Dobson’s case, Greensboro police stopped a Dodge Charger in 2021 outside nightclubs after a report of a handgun in the door pocket. Officers said they smelled what they believed to be marijuana — along with a strong cologne scent — as they approached. The driver, a probation officer, told them she had a gun but said the odor came from people smoking outside. When Dobson, a passenger, got out, officers said they saw a package of marijuana on his seat and later found a gun in his waistband. A grand jury indicted him on gun and marijuana charges. He unsuccessfully asked a judge to suppress this evidence, citing the stop being conducted without reasonable suspicion, case documents show.

Dobson agreed to a plea deal that dismissed the marijuana charges. But he later appealed, and the Court of Appeals ruled the officers had probable cause.

The final case differed slightly in that the state pressed the justices to uphold the odor-alone rule more explicitly, arguing it should remain a standard even after hemp’s legalization.

“The odor of cannabis is a distinctive odor, and for the most part it is marijuana,” said Special Deputy Attorney General Alan McInnes.

The case began with a Forsyth County traffic stop where deputies said they smelled marijuana. A frisk turned up what they described as a blunt, though they later said they could not distinguish hemp from marijuana and no testing was performed.

Terrel Dawayne Rowdy denied having or being around marijuana, case documents show. A trial judge allowed the evidence, pointing not only to the odor and blunt but also to other factors, including his prior convictions and his decision to pull into the West Wall Apartments, described as a high-crime area. A jury convicted him of carrying a concealed weapon. Rowdy appealed, but the Court of Appeals sided with the trial court.

This story was originally published September 9, 2025 at 3:21 PM.

Luciana Perez Uribe Guinassi

The News & Observer

Luciana Perez Uribe Guinassi is a politics reporter for the News & Observer. She reports on health care, including mental health and Medicaid expansion, hurricane recovery efforts and lobbying. Luciana previously worked as a Roy W. Howard Fellow at Searchlight New Mexico, an investigative news organization.