What is that Green, Leafy Substance?

HempWhen is a green, leafy substance that smells and looks like marijuana not marijuana?

When it’s industrial hemp, a legal product in North Carolina as of 2015.

The legalization of industrial hemp has important implications for North Carolina criminal law in two areas – the justification used to search a home or car, or conduct a pretextual detention; and the admission of testimony at trial that the material seized during the arrest was, in fact, marijuana.

Is that Industrial Hemp I Smell?

First, the odor of (unburnt) marijuana is often a pretext for the search of a home or car, or to detain a suspect. But, now, with the legalization of industrial hemp, which smells just like weed, means that police now have lost probable cause to search on the naked assertion of an “odor of marijuana.”

Odor of marijuana, you say officer? No, it’s the legally purchased, legally possessed (as legal as a bag of flour being confused for powder cocaine) industrial hemp. Move along. Nothing to search here.

Of course, police may still assert probable cause to search based on other indicators. The smell of burnt marijuana may be enough, since there is probably little reason to burn industrial hemp in a car.

But, as a general matter, the lack of specificity about the odor, and the lack of other indicators to suggest a crime is afoot, is going to mean that such a search is illegal, and the fruits of the search (even if they turn out to be marijuana) are illegal.

I espy Marijuana

Let’s assume that something looking like “marijuana” has been found. Up until now, North Carolina appellate courts have generally held that a police officer – or any lay person – who has past familiarity with marijuana can testify at trial that the substance that was seized was, in fact, marijuana. See, for instance State v. Moncree (2008).

That rule does not apply to other kinds of controlled substances, which must be chemically tested. In State v. Ward, the North Carolina Supreme Court held that the use of the micromedex book – a book by which pills could be visually identified – was not reliable enough to be admitted in court as proof of pill’s chemical make-up.

Now, with the legalization of industrial hemp, marijuana now can no longer be visually identified. Fred Whitehurst has written before about this issue, arguing that the visual identification of marijuana has always been suspect.

But his argument becomes even stronger now that the same plant, with lower THC content, is legal.

Marijuana Laws and Penalties in North Carolina

North Carolina is slow to change. So that means that we’ll probably be one of the last states to legalize medical marijuana or decriminalize marijuana all together. While I think that it, and many other drugs, should be legal, the reality is that currently, marijuana in any form, even if prescribed by a physician in another state, is not legal.

Continue reading “Marijuana Laws and Penalties in North Carolina”

Legal Weed

Scott Greenfield on havoc that weed’s criminalization has caused the American people, filling our jails with mostly young African-American men, creating an underclass of people with criminal records:

Greenfield video

“The worst nastiness we can do is destroy lives. And we know the criminalization of marijuana has done that.”

What is a Misdemeanor Possession Charge in North Carolina?

Raleigh drug lawyerDrug crimes in North Carolina range from the more minor misdemeanor possession charge to much more serious felony charges. The most common misdemeanor possession charges relate to marijuana, which is a schedule VI substance under the North Carolina Controlled Substances Act, N.C. Gen. Stat. § 90-95. Possession of up to 1.5 ounces of pot is classified as a misdemeanor while possession of up to 0.15 ounces of hash also falls under misdemeanor status. Anything above those weights is classified as a felony.

Misdemeanor marijuana possession and hash related charges are broken down into 2 main categories:

  1. First time possession of marijuana up to 1/2 ounce of 1/20 ounce of hash is a Class 3 misdemeanor
  2. Possession of up to 1.5 ounces of marijuana, up to 21 grams of synthetic cannabinoids, or up to 3/20 of an ounce of hash is a Class 1 misdemeanor under N.C. Gen. Stat. § 90-95(d)(4).

While marijuana is the most common misdemeanor possession charge, there are other drugs that can be charged for possession at the misdemeanor level. Schedule II, III, and IV substances can all be charged as Class 1 misdemeanor possession while Schedule IV drugs can be charged as a Class 2 misdemeanor. The drugs that fall into these categories can be found on the NC Controlled Substances chart. As a short breakdown:

  • Schedule II – Morphine, Demerol, Codeine, Percodan, Percocet, Fentanyl, Dilaudid, Secondal, membutal, Cocaine, Amphetamines, and other opium and opium extracts and narcotics
  • Schedule III – Certain barbituates such as amobarbital and codeine containing medicine and codeine-based cough suppressants
  • Schedule IV – Barbiturates, narcotics, stimulants including Valium, Librium, Darvocet
  • Schedule V – Compounds that contain very limited amounts of codeine, ethylmorphine, opium, and atropine

It is important to note that while Schedule II through V substances can be charged at the misdemeanor level, it is very unusual and we more commonly see these charged as felonies.

The law that makes possession of a controlled substance illegal in North Carolina differentiates possession into two different types – actual possession and constructive possession.

Actual possession means that you have the drug on your person, such is in your hand or in your pocket, and you have knowledge of the drug. This type of possession is the easiest to prove. Constructive possession is more difficult to prove because while you may not have the drug on your person, this alleges that you have knowledge of the drug’s presence, you know it’s illegal, and you intent to take actual possession. Constructive possession is the argument often used when there are multiple people in a car and a drug is found in the car but not on any one particular person.

There is one last misdemeanor drug related charge to mention that does not involve actual drug possession and that’s possession of drug paraphernalia. This charge is used when there are any tools or objects present for the purpose of drug use. Examples are grinders, wrapping papers, scales, and pipes.

Penalties for misdemeanor drug possession can range from probationary to active jail time, depending on the type of drug found, the amount, and a person’s previous criminal history. In some cases, what would normally be a misdemeanor drug possession charge can be elevated to a felony if a person has a previous history of drug crimes. While possession of a controlled substance is one of the most common charges in North Carolina, that makes it no less serious. If you’ve been charged with possession, whether at a misdemeanor or felony level, contact a Raleigh drug lawyer to discuss your case and learn what your options are.

Marijuana Crimes in North Carolina

Raleigh Marijuana Lawyer

While sixteen states have legalized marijuana, at least in its medicinal form as of 2014, North Carolina has not. Marijuana is still illegal, and possession of it is at least a class 3 misdemeanor. In substantial amounts – greater than 10 pounds – a person caught with marijuana can face a mandatory minimum of 24 months in prison for trafficking in marijuana.

Other charges can include misdemeanors or felonies, including Possession with Intent to Sell and Deliver (PWISD) marijuana, the sale or delivery of marijuana, felony maintaining a dwelling or vehicle purposes of selling the drug, or possession of drug paraphernalia.

In addition, a person charged with marijuana sale or possession with the intent to sell or deliver may be assessed a tax by the Department of Revenue, know as an unauthorized substance tax.

How can I beat a marijuana charge?

Having been charged with a crime involving marijuana, you face a number of options. First, you may be eligible, depending on the nature of the crime and the amounts, for a drug diversion program. These programs involve drug classes, sometimes community service, and the payment of court costs. If you decide to enter one of these marijuana diversion or deferred prosecution programs, your case will be marked as pending for six months or a year, during which you will be required to comply with the terms of the program.

If your case is strong enough, or if the police violated your rights in conducting the search or seizure of the evidence, you may have a viable defense or suppression motion. In that case, you may wish to have a trial or hearing on the matter, especially if the prosecutor assigned to your case is not offering you a reasonable plea offer.

Will my medical marijuana card permit me to have marijuana in North Carolina?

No. North Carolina has not legalized marijuana. The federal government has not legalized marijuana. While some states have legalized or decriminalized marijuana in certain respects, the fact that you have a medical marijuana certificate from California or Colorado does not allow you to possess the marijuana in North Carolina.

Prosecutors here will not dismiss your marijuana charge because of an illness you may suffer that can be treated by the use of marijuana.

How will my marijuana be weighed?

Marijuana edibles have grown in popularity. Brownies and baked goods are increasingly common, and may have fairly small amounts of marijuana in them. While North Carolina law allows the prosecutor to charge a person based on the entire weight of a drug plus the weight of non-active ingredients, that principle does not apply to marijuana. Law enforcement is not required to subtract out the brownie from the marijuana. The weight of the entire brownie including the marijuana will be used to assess the weights for legal purposes.

Where can I get a drug treatment assessment?

If you’ve been charged with a marijuana crime, you may be advised by a lawyer to get substance abuse assessment and comply with recommended treatment. Your lawyer should give you the names of approved agencies. Some of those agencies are listed on this website.

Police said they smelled marijuana, but found none. Can this help my case?

In drug cases, police often predicate a warrantless search by claiming that they smelled the odor of marijuana. If marijuana is found, it becomes difficult to contest the search – after all, even police were misleading in claiming they smelled the pot, they did in fact find it.

North Carolina appellate courts have generally given police very broad latitude to search if they smell the marijuana, and ultimately find it.

But what if police ultimately don’t find the marijuana? While police are not required to find the marijuana, if they don’t find any at all, then the issue becomes one of credibility – did they really smell what they say they smell. I’ve had fairly inexperience police officers assert that they smelled marijuana, ultimately to find none. If that happens, some DAs will recognize the weakness of their case. However, the failure to find marijuana doesn’t mean the ultimate dismissal of your case.

Can dogs detect marijuana?

Law enforcement and the Supreme Court are adamant that dogs are good drug detectors, this in the face of the scientific literature that says that dogs are no better than a coin-flip at detecting drugs.

If police bring a dog to your vehicle within a timely fashion, and the dog “detects” marijuana, then ultimately it’s up to your defense lawyer to challenge the dog’s credibility.

How can I expunge an old marijuana conviction?

North Carolina allows one expungement in a lifetime. If you were convicted of a marijuana crime that does not involve PWISD, sale/delivery or trafficking, and that conviction is more than 15 years old, you may be eligible for an expungement. You should seek the advice of a lawyer.

Police want to search my home/car/apartment/luggage? What should I do?

It is important that you never consent to a search. Consent is the permission you give if a police officer asks you if he or she can search your home, apartment, car, luggage, or pocketbook. Politely say “no.” You don’t need to give an explanation, and you shouldn’t give an explanation.

If the police officer insists on searching, or if the police officer has a search warrant, you should step aside, or turn over the pocketbook, but remind the police officer – politely – that you do not consent to a search.

Ultimately, whether the police officer had the authority to search depends on a number of factors. But, if you gave permission, you have very few legal grounds on which to challenge the search.

Writs of Assistance: The Odor of Marijuana

The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment had a specific historical context: the colonists, and later the Founders of the American Republic, were worried about General Warrants, also known as Writs of Assistance. These were all-purpose documents that permitted soldiers and law enforcement of the British Empire to search whereever and whenever they wanted for contraband, including papers, documents, and other materials that proved sedition or treason.

But, as writer Julian Sanchez notes, complaints about General Warrants also had a cultural context, as police forces, such as they were, were generally comprised of poorly trained or entirely untrained people drawn from lower social orders. So the argument that homes should not be arbitrarily invaded by the “low lif’d” was not only a principled defense of individual liberty, but also a complaint about poor, unkempt and untrained bullies rummaging through a home.

The dramatic and catastrophic erosion of Fourth Amendment protections – largely as a result of the War on Drugs – has occurred in the context of the professionalization and militarization of police forces. Today’s officer is more highly trained, particularly when it comes to the use of various types of force, and, thanks to civil asset forfeiture, better armed.

As Sanchez notes:

Perhaps it’s no surprise, then, that courts often seem to bend over backwards looking for ways to accommodate police and other government officials, explicitly assuming—utterly contrary to the spirit of the Fourth Amendment—that these upstanding professionals can and must be routinely trusted with substantial individual discretion over who, how, and when to search. We certainly don’t need a return to the hostile view that government investigators are “despicable wretches”—but it would be nice to see more recognition that they are, after all, “common fellows” whose intrusions on the privacy and dignity of their fellow citizens require judicial supervision, whether that citizen is an affluent merchant or “the poorest man… in his cottage,” and regardless of whether the investigator is a “menial servant” or a clean-cut middle-class professional.

While don’t quite have General Warrants today, we do have something very close – call it the Odor of Marijuana Warrant, which creates probable cause, according to the North Carolina Appellate Courts, to search virtually anywhere in a home or vehicle.

Technology, the Fourth Amendment, and the Drug War

The United States Supreme Court’s jurisprudence on the Fourth Amendment is hopelessly naive, incoherent, and stupefying. Chalk that up to the Drug War, which for forty years has been a tool by both drug warriors and government officials to expand the government’s power to conduct searches.

Let’s take one example: Kyllo v. US, 533 US 27 (2001).

The Department of the Interior used a thermal imaging device outside Danny Lee Kyllo’s home which could not penetrate the walls or windows to reveal conversations or human movement, but could only record heat emitted from the home. The police were looking for evidence of a hydroponic marijuana grow operation, indicative of marijuana drug trafficking.

The observations of heat emanating from a part of the house formed the sole basis of the probable cause that gave police the authority to then raid the house pursuant to a search warrant.

The Court held: “Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment ‘search,’ and is presumptively unreasonable without a warrant.”

In other words, the Court held that the thermal surveillance was itself a search that had been conducted without a warrant. The search was presumptively unreasonable given its warrantless nature, and the Court ultimately held that it was in fact illegal because the equipment used was not readily available to the general public.

In a second, related example: Florida v. Riley, 488 U.S. 445 (1989).

A Florida sheriff received a tip that a man was growing marijuana behind his mobile home. Unable to see in the greenhouse, the sheriff ordered a helicopter to fly over the property at a relatively low altitude. The sheriff could observe through his own observations – two panels were missing on the top of the greenhouse allowing him a view into the greenhouse from above – that marijuana was indeed growing inside. A warrant was obtained, and the man was charged with having a grow operation.

(Ignore, for a moment, whether the sheriff could really determine at any significant height whether in fact the plants were marijuana.)

In both cases, the Supreme Court held that the reasonableness of the search in the context of existing technologies – whether the general public would have access to thermal imaging equipment or whether the general public would expect a low-flying aircraft.

In 1990 or 2000, the idea that the general public would have access to these or similar technologies was far-fetched. Not so today.

Drone aircraft have been used increasingly in Iraq and Afghanistan to conduct assassination operations by the U.S. Government. Drone aircraft are also an increasingly common in civilian settings. Police departments – through federal grants – are getting access to the equipment. The University of North Dakota is evening offering a major in how to pilot drone aircraft.

Hobbyist groups allow regular people to acquire and fly drones.

Criminals have even gotten into the act, attempting to smuggle cell phones into a Brazilian prison through the use of an unmanned (and untraceable) vehicle.

I predict that over time, the Supreme Court will use these developments as an reason (excuse?) to grant the government even greater surveillance powers.

All in the name of keeping the country pot-free. Even though there is broad support for marijuana legalization.

And even at least 10 percent of Americans regularly smoke marijuana, and roughly 40 percent of all Americans have used marijuana in their lifetimes. And that marijuana has few addictive properties, and that marijuana is as much a gateway to harsher drugs and tobacco or alcohol are. And on and on.

New York May Limit Marijuana Possession Arrests

The New York Times is reporting that New York Governor Andrew Cuomo has proposed to essentially decriminalize the possession of small amounts of marijuana.

The move would go a great way toward protecting people’s individual rights given that so many searches are predicated on the smell of marijuana. If small amounts of marijuana were legal to possess, it would effectively eliminate a pretext for a great many searches.

According to the New York Times:

Mr. Cuomo, a Democrat, plans to hold a news conference at the Capitol on Monday to announce his plans to seek the change in state law. Administration officials said the governor would seek to downgrade the possession of 25 grams or less of marijuana in public view from a misdemeanor to a violation, with a maximum fine of $100 for first-time offenders.

Driving While Drugged… Safer than You Thought?

Driving While Drugged is taking on increasing importance, especially as the incidence of Driving While Impaired has declined dramatically over the past 30 years. Local agencies in Raleigh have been training increasing numbers of Drug Recognition Experts (DREs) whose job it is to come to a scene and use various observational skills to identify whether the suspect is, in fact, impaired as the result of a drug (as opposed to alcohol).

There is an assumption that all impairment, however, is equally dangerous. A recent study shows that marijuana use may actually improve highway safety relative to alcohol use:

According to research published in November by the Institute for the Study of Labor, a German think tank, medical marijuana laws in the United States have been associated with a 9 percent decline in traffic fatalities. That result is based on data from the Fatality Analysis Reporting System for 13 states that legalized medical use of cannabis between 1990 and 2009. The study’s authors, Montana State University economist D. Mark Anderson and University of Colorado at Denver economist Daniel Rees, argue that the most plausible explanation is the substitution of marijuana for alcohol, since laboratory research indicates that smoking pot impairs driving ability substantially less than drinking does.

Impaired driving is never a good idea. However, drivers impaired on marijuana may actually be safer than drivers impaired on alcohol, which is not a recommendation that people smoke pot before driving, but a recognition that different drugs affect the body differently.

Can Sober Drivers get DUIs?

A California lawmaker is proposing a DWI law that would make it illegal to drive while sober.

The bill would make it:

Because she wants to make it “unlawful for any person who has any level of cannabinoids or synthetic cannabinoid compound in his or her blood or urine to drive a vehicle.”

Cannabinoids — the active in ingredient in cannabis — can stay in the body for up to sixty days. Pot’s effect wears off in 90 minutes to three hours. Ergo, someone who’s had a a joint thirty days prior to any collision can be jailed for DUI under Torres’ ignorant bill. AB 2552 creates more costs to the state, criminalizes innocent people and does not the make roads any bit safer.



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