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.

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