Odor in the Court

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September 08 2025

In North Carolina, the scent of cannabis is stirring up legal trouble.

Despite legal hemp and illegal cannabis smelling identical, police continue to use odor as a reason to search vehicles and people.

Now, the state Supreme Court is stepping in to settle the debate.

18 September 2025

A Sticky Situation

Back in October 2022, two narcotics officers from the Beaufort County Sheriff’s Office claimed they could sniff out the difference between legal hemp and illegal cannabis.

Officer Jason Cleary swore cannabis has a “strong, distinct smell,” while hemp is less intense.

Lt. Russell Davenport, a graduate of “cannabis spotter school,” backed him up, claiming his training let him know cannabis when he smelled it.

But here’s the catch: experts say hemp and cannabis smell the same. No nose—human or canine—can reliably tell them apart.

Yet, officers keep using the whiff of cannabis as probable cause for searches, sparking legal battles across North Carolina’s courts.

The Case That Sparked It

In 2022, officers watched a suspected drug house. Davenport claimed he smelled cannabis near a parked car.

When the driver, a teenager (J.B.P. in court docs), drove off, Cleary stopped him, also citing the cannabis scent.

They searched the car, seizing alleged cannabis, a scale, and a gun.

No field test could confirm if it was cannabis or hemp—not even the State Crime Lab can tell them apart. J.B.P.

argued the search violated his rights. A judge agreed, tossing the charges. Prosecutors appealed, and a three-judge panel reversed the decision, saying probable cause is a low bar.

If officers think they smell cannabis, that’s enough, hemp or not.

Hemp’s Rise, Law’s Lag

Hemp became legal in North Carolina in 2019, aligning with federal law, and was fully declassified as a controlled substance in 2022.

It’s now a multimillion-dollar industry. But the identical smell of hemp and cannabis has law enforcement worried.

A 2019 State Bureau of Investigation memo warned that legal hemp could effectively legalize cannabis, as neither cops nor prosecutors can prove the difference in court.

Still, officers keep using cannabis odor as probable cause.

Appellate courts have largely backed them, saying the smell alone meets the low standard for a search, even if it could be legal hemp.

On September 9, 2025, the state Supreme Court will tackle this issue in three cases: State v. Schiene, State v. Dobson and State v. Rowdy.

Hemp vs. Cannabis: The Science

Hemp and cannabis both come from Cannabis sativa.

The difference? Cannabis has delta-9-THC, the stuff that gets you high, at 0.3% or more.

Hemp has less THC and more CBD, which doesn’t get you high and helps with conditions like epilepsy.

But hemp products like delta-8 and delta-10, which can have psychoactive effects, are legal and lightly regulated.

Billboards hawk them across the state.

Then there’s THC-A, a chemical in cannabis that turns into THC when heated.

Without lab testing, cops can’t tell what’s what—and the State Crime Lab lacks the gear to measure THC levels precisely.

Constitutional Conundrum

Legal experts warn this setup risks violating rights against unreasonable searches.

Morgan Davis, a Raleigh cannabis law attorney, says it’s wild that a legal substance like hemp can trigger searches.

Her clients face court dates, missed work, and even jail risks over something that might be legal.

“It’s mind-boggling,” she says.

A Bigger Picture

North Carolina’s attorney general, Jeff Jackson, once called for ending federal cannabis prohibition, citing racial disparities in arrests—people of color are three times more likely to be arrested for cannabis.

Yet his office defends odor-based searches.

In State v. Dobson, prosecutors argued the cannabis smell, plus cologne (used to mask it, they claimed), justified the search.

A Real-World Example

On June 14, 2024, Dominique Prather, a North Carolina A&T student, was stopped for a burned-out headlight. She’d just bought legal hemp and offered to show the receipt.

The officer, Addison Fitzgerald, declined but searched her car anyway, seizing the hemp and charging her with cannabis possession.

The charges were later dropped after bodycam footage surfaced, but not before Prather endured court trips and stress over her future.

Emancipate NC, her legal team, launched a “Don’t Plead to Weed” campaign, noting 30,000 annual cannabis-related charges in the state.

What’s Next?

The Supreme Court’s ruling could reshape how cannabis odor is used in searches. For now, the smell test remains a legal gray area, leaving many caught in the haze.