Although illegal marijuana and legal hemp look and smell the same, a criminal pot prosecution in North Carolina may still be legitimate when sight or smell contributes to a warrantless search and seizure, ruled the state appeals court on Tuesday.
A three-judge panel found no error related to a trial judge or attorney for Derek Edwin Highsmith, who was convicted last year of criminal marijuana possession stemming from a traffic stop in Duplin County in 2017. He was sentenced to a maximum of just over four years in prison.
Highsmith argued unsuccessfully at a pre-trial hearing that evidence gathered after a K-9 alerted officers to possible drugs inside the vehicle he was in should have been suppressed because it had been obtained illegally. This is remarkable, according to the opinion citing Highsmith, with legalized hemp now widely available.
Superior Court Judge Henry Stevens IV denied Highsmith’s motion to suppress, saying the K-9’s positive narcotics alert, along with other factors, provided officers with the facts to find probable cause for perform the search. The prosecutor called it a “K-9 sniff-plus case,” Tuesday’s opinion said.
Sheriff’s officers said they saw a vehicle leaving a residence after numerous complaints about the sale of narcotics there, the opinion said.
Officers, who stopped the car after noticing the vehicle had a broken brake light and crossed the center line, recognized Highsmith, a passenger in the vehicle, other marijuana-related activity and called a K-9 unit . During this time, officers noticed an ammunition box sitting in a back seat and gathered other unusual or inconsistent information.
After the dog arrived and alerted officers, the search revealed a plastic bag they believed to be marijuana, along with $1,200 cash on Highsmith and a digital scale. He was eventually charged with multiple counts.
Writing the unanimous opinion, Court of Appeals Judge Lucy Inman said Stevens adequately explained how the marijuana was legally seized. Nor was Stevens wrong in not telling the jurors that the state had to prove that Highsmith actually knew the bag contained marijuana and not hemp, Inman wrote.
“Given the above circumstances in which the contraband was found…we cannot conclude that the absence of an actual knowledge instruction had any likely impact on the jury’s verdict,” she added. .
Justices John Arrowood and April Wood joined in the opinion, which the state Supreme Court is not obligated to hear due to its unanimity.
Governor Roy Cooper signed legislation in June that permanently exempts hemp industry products, including CBD, from the state’s controlled substances law. Hemp contains a very low amount of the chemical that gives marijuana users the high.