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Full NC Court Asked To Review Panel's 'Double Odor' Pot Test

Law360 (May 6, 2024, 1:27 PM EDT

A man who pled guilty to cannabis-related charges after a traffic stop is asking for an en banc review of a North Carolina appeals panel's rejection of his argument that the evidence against him was unconstitutional. 

In a motion filed Wednesday in the state Court of Appeals, Tyron Lamont Dobson said that with the state's legalization of hemp, an officer should need more than just two smells to establish probable cause to search. It's scientifically impossible for the human nose to detect the difference between marijuana — which the state still considers illegal — and hemp, which the legislature legalized in 2015, so the previous standard of smelling cannabis, the plant from which both derive, isn't enough for probable cause.

In Dobson's case, the motion said, the appeals court should have considered the totality of the circumstances, but instead only considered that officers reported detecting the "odor of marijuana" and that of cologne or perfume, which the officers argued was a "cover" scent.

"Any member of this honorable court could, on a lunch break, go sit in his or her car and smoke legal cannabis," the motion said. "But if that judge also happened to be wearing cologne or perfume, then, under the reasoning of the panel's decision here, that judge would be putting his or her constitutional rights in jeopardy."

According to the motion, in January 2021 Dobson was in a vehicle that was stopped after officers received a report of a visible handgun from a group leaving a nightclub. On stopping the car, the officers discovered the handgun belonged to the woman driving, who was a probation and parole officer, but then searched the car because they said they smelled marijuana.

Dobson entered a guilty plea on the charges against him after the trial court refused to suppress evidence that he said was collected during an unconstitutional warrantless search. On appeal, he argued that the smell of marijuana is indistinguishable from the smell of legal hemp, and therefore is not enough on its own to justify a search. The appeals panel rejected the argument, prompting the en banc motion.

According to the motion, hemp cigarettes are legal and sold within the state — including at a store only a "short walk" from the Court of Appeals in Raleigh.

"On the outdoor patio of a bar during a North Carolina Bar Association happy hour, a lawyer could be legally smoking this cannabis right next to a friend who is smoking a Marlboro," Dobson said. "What's more: Based on only the sight and smell of that prerolled cigarette, no one would be able to tell if that lawyer was smoking legal hemp or illegal marijuana."

The motion added that the state police are well aware that they cannot tell the difference by smell, as evidenced by a State Bureau of Investigation memo admitting as much, and the law enforcement community's request that the General Assembly reconsider its decision to legalize smokable hemp. The General Assembly considered making smokable hemp illegal, but declined to do so, according to the motion.

While the appeals panel tried to draw a distinction between "smelling marijuana" and smelling "the odor of marijuana," Dobson said that this distinction makes no difference, and the courts and police use the two phrases interchangeably.

The panel further found that it was not only the smell of cannabis, but that of perfume or cologne that created probable cause, but the motion said this doesn't pass muster. It said the panel should have looked at the totality of the circumstances; for example, that no bottles of cologne or perfume were collected as evidence — suggesting the scents were not hastily sprayed — and that Dobson and his companions had just left a nightclub, where it is "commonplace for people to wear cologne and perfume."

"Remarkably, the defendant in a future case like this one could have just left a cologne convention for fragrance industry insiders co-sponsored by Christian Dior and Giorgio Armani — but even that circumstance would necessarily escape the courts' consideration, under the new rule that the panel has created here," Dobson said.

Dobson added that there was nothing stopping the "two odors" standard from turning into a "cannabis plus X" formula that could justify a search based on the scent and things like nervous behavior from the suspect.

Allowing the ruling to stand would erode constitutional protections and go against the legislative intent of the General Assembly, Dobson said, by creating a formula for probable cause that ignores generations of precedent and the state legislature's clear decision to allow residents to legally smoke hemp.

An attorney for Dobson declined to comment Monday.

Representatives for the state could not immediately be reached for comment Monday.

Dobson is represented by Benjamin J. Kull of BJK Legal.

The state is represented by Milind K. Dongre of the North Carolina Attorney General's Office.

The case is State of North Carolina v. Dobson, case number COA23-568, in the North Carolina Court of Appeals.

--Editing by Robert Rudinger.

Update: This story has been updated with a response from Dobson's attorney to a request for comment.



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