Hemp & Marijuana in North Carolina: Probable Cause Still Matters
As criminal defense attorneys in Charlotte, NC, we are accustomed to seeing some degree of overreach by law enforcement. After all, no one is perfect, and police and prosecutors are just as fallible as the people they put through the system.
When this happens, we usually rectify it with the notion that law enforcement officials are generally acting in the interests of justice. However, at Randall & Stump, we have noticed a growing trend of law enforcement circumventing the long-standing legal principle of probable cause in how marijuana and hemp laws are currently being enforced in North Carolina.
The current practice has serious implications for how criminal cases are handled in the state and are potentially resulting in a slew of unjust drug charges, convictions, and unwarranted fines being assessed. Until these unchecked marijuana and hemp enforcement practices are corrected, it’s hard to argue that this is anything but the erosion of your constitutional rights.
The History of Legal Hemp in NC
In 2015, the N.C. General Assembly implemented a pilot program to study the viability and profitability of growing industrialized hemp. The legislature also created the Industrial Hemp Commission to oversee the licensing and regulation of North Carolina hemp farmers.
While the program was initially intended to produce industrial hemp products from the stalk of the plant, such as textile fibers, rope, and soap, it has morphed to include all manner of hemp items due to popularity and national demand. As anyone who has visited a head shop in North Carolina can attest to, you can now find anything from hemp-infused candies, gummies, lotions, topical CBD oils, and smokable hemp from the buds of the plant.
It is important to remember that hemp is legal under state and federal law. And since the law’s passing, there are now over 600 licensed hemp farmers, covering 8000 acres in North Carolina. With the decline of tobacco farming in North Carolina and the 2018 Farm Bill that reclassified hemp to an agricultural commodity, this was a much needed boost to the agricultural economy, quickly making hemp a billion-dollar business.
Hemp Vs. Marijuana
The problem with hemp arises because of its similarities to marijuana, which is still considered a controlled substance in North Carolina. To clarify, marijuana and hemp are not synonymous. While they are both in the cannabis family and look virtually identical, only marijuana has intoxicating effects.
The distinction between the two plants has historically not caused legal issues because hemp was primarily grown for its fibers, but with the popularity of smokable hemp, it becomes indistinguishable from the marijuana buds we have come to recognize.
Now, hemp buds can be smoked, eaten, or vaped, just like marijuana, but without the same psychoactivity as THC, marijuana’s active ingredient. Instead, hemp provides the user with a dose of cannabidiol (CBD), which has some non-intoxicating anti-anxiety, pain relief, and other medical properties.
Detecting THC & Hemp Testing Issues
Distinguishing smokable hemp from illicit marijuana is next to impossible without a chemical test. In fact, there is no way for an individual to tell the difference between a hemp bud and a marijuana bud because they look and smell identical.
The North Carolina Department of Agriculture is tasked with overseeing industrial testing to ensure intoxicating marijuana is not sold to consumers as hemp. Since some degree of THC is always present in marijuana and hemp, the North Carolina Department of Agriculture sends industrial samples to private labs to ensure quantified THC levels fall within the legal limit of .3%.
Due to the large volume of hemp samples the North Carolina Department of Agriculture routinely submits, it was able to enter into an agreement with a private lab in North Carolina to have the THC levels quantified at a reduced cost to the State. When done for small amounts, like those involving marijuana possession allegations, the cost and equipment involved make accurate testing impractical.
In fact, the North Carolina State Bureau of Investigation notified all law enforcement agencies and District Attorney’s Offices that it is only able to run lab tests that only detect the presence of THC, but not the quantified threshold. Therefore, North Carolina’s own State Crime Lab has explicitly notified other interested state agencies that it has no ability to distinguish between legal hemp or illegal marijuana with its current equipment and testing procedures.
This .3% standard also does not take into account when hemp is sent to out of state facilities to be processed into a myriad of hemp products like CBD oils, gummies, and lotions. These facilities may not have the same standards, and .3% hemp in North Carolina can be mixed with higher percentage hemp from other locations.
In addition to official lab analyses, there are no field tests available to law enforcement, like with other narcotics to differentiate between these visibly identical substances. Even police K-9s are unable to differentiate between the two because they are only trained to identify THC; therefore, a drug dog will stop on legal hemp the same way they would marijuana.
The Problem with Probable Cause
The inability to tell the difference between these two plants creates a huge issue for law enforcement, or at least should. Probable cause is the legal standard used to support an arrest, criminal charges being filed, a search, or the seizure of evidence relating to criminal activity.
Under the North Carolina statute, probable cause is defined as having “a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true.”
When it relates to marijuana charges, an officer previously only had to worry about one substance informing probable cause to believe that the substance in question is evidence of a crime. This was done by identifying marijuana by sight, smell, and through their training and experience. The birth of identical-looking and smelling hemp buds changes this because what they are looking at or smelling could very well be smokable hemp.
In the past, police could also point to the presence of marijuana paraphernalia, like rolling papers, grinders, and pipes to support their suspicions, but smokable hemp uses the same items. Again, the existence of smokable hemp buds makes an alternative and completely legal set of circumstances just as reasonable.
Therefore, without a valid way to confirm the presence of marijuana via field testing, there is no way an officer or K-9 officer can differentiate between legal hemp buds and illegal marijuana, which the NC SBI explicitly stated in its letter referenced above. Without this ability, there is no way that an officer can form the requisite probable cause to seize it as evidence, conduct a warrantless search, or apply for a search warrant. And, minus evidence of criminal activity, there is no probable cause to support an arrest and criminal charges.
Knowingly in Possession
Aside from the significant problems meeting the probable cause standard to justify an arrest, seizure of evidence, or search, securing a marijuana conviction requires another critical element. In North Carolina drug possession cases, a prosecutor must show beyond a reasonable doubt that you were “knowingly in possession” of a controlled substance.
In the past, circumstantial evidence could be used to demonstrate your knowledge that the substance in question was marijuana in addition to lab possible lab reports confirming THC. But if you present an argument that you believed what you had was lawful hemp, there is no definitive way to refute your claim without a cost-prohibitive private lab test that would likely not meet evidentiary standards, given the State Crime Lab is unable to conduct the requisite testing.
Are Marijuana Arrests Still Happening?
The short answer is – Yes, however, they shouldn’t be. In other states where similar discrepancies between hemp and marijuana are creating problems, law enforcement has decided to forgo making arrests and waive prosecution in minor marijuana possession cases. To that end, The North Carolina State Bureau of Investigation actually issued a memo to the NC General Assembly, police departments, and District Attorneys’ offices detailing the problems under the current state of the law.
The memo outlined the similarities between the substances in appearance, odor, and lack of accurate testing procedures. The memo also said, “it is impossible to use the appearance of marijuana to develop probable cause for an arrest, seizure of an item, or probable cause for a search warrant.”
Before legal hemp’s prevalence, the long-held standard in State v. Fletcher 92 N.C. App. 50 (1988) indicated that an officer’s visual identification was enough to support a marijuana charge and conviction. This is now in question, and with the ability to prosecute marijuana cases in jeopardy, many states with similar issues with legal hemp have started waiving arrests.
Unfortunately, many police departments and prosecutors seem to be ignoring the State Bureau of Investigation’s warnings and the legal standards they swear to uphold. Marijuana arrests are still happening, leading to ill-informed defendants accepting the consequences for something that arguably could have been 100% legal or at a minimum, the State has zero ability to prove.
Where Do We Go from Here?
The current situation is unfair and unsustainable. But since most marijuana possession penalties are relatively minor and taking these cases to trial is rare, no one is holding the police and prosecutors accountable for their massive overreach. Instead, they are left unchecked to violate your rights, rack up unfair drug convictions, and collect unjustified fines and court fees.
Eventually, the courts and legislators will need to step in to rectify things. If people begin taking these cases to court, police officers will need to testify about making arrests without probable cause, and prosecutors won’t be able to prove possession beyond a reasonable doubt. These dismissals will then result in fewer arrests.
The other options are to redefine the marijuana and hemp statutes to make smokable hemp illegal along with marijuana or find a reliable field test product that is capable of testing for THC levels so that it can be determined if the substance contains more than .3% THC. Redefining the marijuana and hemp statutes seems to be the more attractive option to lawmakers, who drafted Senate Bill 315, which would make smokable hemp illegal by June 2020 with the enforcement of the ban to be phased out as standard field tests become available. A vote on the bill has since been delayed until 2020.
Don’t Be Unfairly Convicted
In the meantime, people are still being arrested for the lawful possession of hemp and vital legal standards like probable cause are being ignored. Don’t merely accept a marijuana possession conviction because you think the deck is stacked against you and you’re out of options.