Attorneys take argument over ‘marijuana smell’ to NC Supreme Court

A new petition to the North Carolina Supreme Court argues police shouldn’t be able to search your car based on what they smell.

The petition was filed by attorney Benjamin Kull on behalf of Tyron Dobson, a Durham man who was arrested in January 2021 in Greensboro on several charges including possession of a firearm by a felon and misdemeanor possession of marijuana.

Dobson argued he wouldn’t have pled guilty to the felony gun charge if police hadn’t illegally searched the car he was riding in. Dobson claimed in the filing that since hemp is also legal in North Carolina, it’s impossible for a human to smell the difference between legal and illegal cannabis.

His conviction was upheld by a ruling in a North Carolina appeals court in April, in which judges ruled that since officers detected the smell of marijuana and a “cover scent” their search was legal.

One local attorney in the Charlotte area referred to that as an “odor-plus” policy.

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“For the Charlotte-Mecklenburg Police Department, they specifically have a policy that states you cannot arrest or search just for the smell of marijuana or what’s called the odor alone,” Lauren Newton told Channel 9′s Evan Donovan. “It has to be odor-plus. And this is kind of an internal policy, obviously not state law.”

Newton is the attorney who represents Christina Pierre, the woman who was punched more than a dozen times by police during her arrest in November. CMPD officers claimed to smell her and her fiancé smoking marijuana at a bus stop near a southwest Charlotte Bojangles, leading them to approach and question the couple, eventually arresting them. Pierre claims they were smoking a legal cannabis substance.

Newton agrees with the Kull’s arguments in the filing for Dobson.

“Every police department is different, and unfortunately the criminal laws have not caught up with the hemp laws. So it is impossible to distinguish the smell of illegal marijuana with legal hemp products such as THC-A, which is not the same as marijuana,” Newton said.

EXPLAINER: What is THC-A, and what's legal in North Carolina?

Kull, on behalf of Dobson, claims police shouldn’t be able to search a vehicle based on the smell of marijuana or a cover scent.

“The issues raised here cut straight to the heart of one of the most sacred of our constitutional protections: the right to be free from unwarranted government intrusion in one’s personal life,” Kull wrote.

After that incident, a community group recommended that CMPD stop searches based on the smell of marijuana. The department declined and continues to let officers have discretion.

Kull said there’s no way to know how long they will be waiting for a decision from the N.C. Supreme Court.

“I’ve seen this type of petition take anywhere from a few days to two years,” Kull told Channel 9.

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