New Filing Asks North Carolina Supreme Court to Revisit Marijuana Odor Search Ruling

A North Carolina attorney is asking the state Supreme Court to revisit a recent marijuana odor ruling, arguing the decision gives police broad authority to conduct warrantless searches even though legal hemp and illegal marijuana can smell virtually identical.

The filing was submitted Tuesday by attorney Benjamin Kull on behalf of Tyron Lamont Dobson, whose case was decided May 22. Kull is asking the court to set aside that ruling and hold new oral arguments, both in Dobson’s case and in a separate pending marijuana-related case involving Codie Bruce Schiene.

The Dobson case stems from a 2021 search in Greensboro that led to criminal charges. Police searched Dobson’s vehicle and person after citing multiple factors, including the odor of marijuana and what officers described as a cover scent. Dobson challenged the search, arguing that the smell of cannabis should not justify police action in a state where hemp is legal.

In its May 22 ruling, the North Carolina Supreme Court unanimously sided against Dobson. The court said the search was justified under the totality of the circumstances, finding that officers relied on more than just the smell of marijuana or a cover scent.

Kull’s new filing sharply criticizes that decision, saying it “repeatedly violates the rule of law in order to allow the very type of ‘evil the [Fourth] Amendment was designed to prevent.’”

At the center of the dispute is whether cannabis odor can still be treated as evidence of illegal activity when North Carolina law allows hemp, which can smell virtually identical to marijuana. Kull argues the court failed to properly address that distinction.

“The correct question is: Was there probable cause to believe the police would find evidence of marijuana-related crimes?” Kull wrote. “But this Court’s decision asks and answers the wrong question: Was there probable cause to believe the police would find unspecified evidence of any unspecified wrongdoing?”

Kull said that approach weakens Fourth Amendment protections by giving officers broader discretion to conduct searches without a warrant.

“By asking and answering the wrong question, this Court’s decision fatally undermines the very reason for which the Fourth Amendment was enacted,” he wrote.

Kull also argued that the ruling creates a practical problem for people who lawfully possess hemp or other legal cannabis products. In his view, the decision suggests that legal products may still expose people to police searches if officers detect their odor.

“[T]his Court’s decision also needlessly answers a consequential public policy question that, according to this Court’s own precedent, is the type of question that the General Assembly should be answering: If North Carolinians lawfully possess lawful property, should they have to hide it from the police?” Kull wrote.

He continued: “If those North Carolinians want to avoid any risk to their freedom and their constitutional rights, then the practical significance of this Court’s decision is clear: Yes, lawful property must be hidden from the police in North Carolina.”

During oral arguments last September, Kull held up a bag of what he said was legal cannabis to demonstrate that lawful hemp and illegal marijuana can produce the same odor. He argued that the state’s legalization of smokable hemp changed the legal landscape for police searches.

Justice Anita Earls, writing for the unanimous court in Dobson, acknowledged that the odor of legal hemp and illegal marijuana are “virtually identical.” However, the court held that odor can still be considered as one factor in a broader review of the circumstances surrounding a search.

The court issued another marijuana odor ruling the same day in State v. Rowdy, also siding against the defendant. In that case, the court found that a search was justified based on several factors, including marijuana odor, evasive behavior, prior convictions, refusal to pull over and the defendant’s presence in a “high crime area.”

Kull did not represent the defendant in Rowdy.

The court has not yet issued a ruling in Schiene’s case, which more directly asks whether marijuana odor alone can establish probable cause for a vehicle search following North Carolina’s legalization of hemp.

Kull is asking the court to reopen the issue, saying new arguments would allow the parties to address how law enforcement should adapt “in the age of legal cannabis.”