With Governor Cooper signing it into law yesterday Senate Bill 455 which permanently excludes hemp from the legal definition of marijuana under state law in NC, hemp’s future as a widely-available consumer product in our state seems secure. Under the new legislation, the previous requirement that the hemp be cultivated or possessed by a grower licensed by the Hemp Commission in order to be considered industrial hemp and not marijuana is removed.
But what do these changes mean for cases where a search or seizure is based on the “odor of marijuana”? Attorneys will have to await further guidance from the courts to resolve the question of whether “odor of marijuana” alone is sufficient basis to form probable cause. In the meantime, attorneys challenging searches and seizures based on “odor of marijuana” should review Court of Appeals Judge Jackson’s dissent in an Order which is not published, dismissing the defendant’s appeal in State v. Robinson. The case is now before the NC Supreme Court. Attorneys should read the Order’s dissent, as well as the amicus brief filed by Elizabeth Simpson on behalf of Emancipate NC and other briefing in that case here and here as the arguments will be helpful in any trial level motions while these issues are pending before the higher courts.