The Smell of Hemp is Not Probable Cause to Search Your Car

Hemp is legal in South Carolina. Hemp is Cannabis. Marijuana is also Cannabis. The flowers of both plants look similar and smell the same. Therefore, the smell of hemp is not probable cause to search your car in SC… it should not be, anyway.

Police in SC are detaining people on the side of the road as they search their vehicles based solely on the smell of a plant that is legal in our state. They are also arresting and charging people with possession of marijuana when they have no way to confirm whether the plant they found is marijuana or hemp.

According to the most recent SC Supreme Court opinions, an officer’s claim that they smell weed is enough to justify searching your car (even when the officer’s drug dog did not alert on the vehicle). But is the smell of hemp probable cause to search your car?

Why Isn’t the Smell of Hemp Probable Cause to Search Your Car?

Other state appellate courts have found that the smell of marijuana alone is no longer enough probable cause to search someone’s vehicle.

Why?

Because, in those states, possession of small amounts of marijuana have been either legalized or decriminalized (fine only):

  • Pennsylvania: Commonwealth v. Barr, decided last month, held that the odor of marijuana alone is not probable cause to search, because possession of small amounts of marijuana has been decriminalized.
  • Colorado: People v. McKnight, decided in 2017, held that the odor of marijuana alone is not probable cause to search, because possession of less than an ounce of marijuana is legal;
  • Maryland: Pacheco v. Maryland, decided in 2018, held that the odor of marijuana alone is not probable cause to search, because possession of small amounts of marijuana has been decriminalized.

In all these states, possession of a larger amount of marijuana is still against the law, so why isn’t the smell of marijuana probable cause to search your car? If there is a reasonable, legal explanation for the smell, it is not probable cause.

Consider this. If you are running down the street, you could be running from an armed robbery you’ve just committed, or you could be running for a perfectly legitimate and legal reason. Running down the street is not probable cause to stop and search you.

On the other hand, if you are running down the street and an officer sees someone chasing you yelling, “stop, he just robbed me,” there’s probable cause that there was something more to it and the officer would be justified in stopping you…

As the Pennsylvania court above noted, the smell of marijuana may be probable cause to search a person’s car, but not unless there is some other indication that the person is actually committing a crime…

Smokable Hemp is Legal in SC

The odor of marijuana alone should not be probable cause to search someone’s car in SC because police cannot distinguish between the odor of marijuana and the odor of hemp.

As in most states, hemp is legal in SC.

Although hemp is a form of marijuana, it contains .3% or less THC – the psychoactive substance that “gets you high” when you smoke marijuana. Although it may be rich in CBD (a non-psychoactive substance that is touted by many for its health benefits), there is not enough THC present to get a person high.

The federal 2018 Farm Bill removed industrial hemp from the Controlled Substances Act, legalized hemp farming if it is also legal under state law, and authorized the transportation of hemp products across state lines.

The SC 2019 Hemp Farming Act then authorized hemp farming in SC, although growers must still apply for a permit and comply with regulatory requirements.

The SC Attorney General has said that it is a crime for anyone to possess unprocessed hemp without a license pursuant to SC Code Section 46-55-20(A)(1). Does that mean smokable hemp is illegal?

No

The intent of the 2019 Hemp Farming Act was to ensure that hemp farmers are licensed and subject to government oversight – to ensure that their crop contains .3% or less THC and the farmers are not growing marijuana on the sly. It does not criminalize your possession of hemp products after they are processed and sold in stores.

First, smokable hemp that you buy in a store is processedSC Code Section 46-55-10(9) defines hemp products as “all products with the federally defined THC level for hemp derived from, or made by, processing hemp plants or hemp plant parts, that are prepared in a form available for commercial sale,” but it does not include “unprocessed or raw plant material.”

The hemp you buy off the shelf has been harvested, trimmed, dried, cured, and packaged for sale – it has been processed, or “converted into a marketable form” as required by SC Code Section 46-55-10(12), which says “Processing means converting an agricultural commodity into a marketable form.”

SC Needs to Move Into the 21st Century

Hemp is legal in SC. Marijuana is not, although small quantities should be. What should happen next?

  • Police need to stop arresting people for small amounts of marijuana – particularly since they have no way of testing marijuana for THC content to determine if it is illegal or if it is legal hemp;
  • Police departments should immediately train officers that they cannot search someone’s vehicle based solely on the “odor of marijuana,” because that smell is identical to legal hemp;
  • All SC marijuana defense attorneys need to challenge searches based solely on the odor of marijuana and move for a directed verdict at trial if the prosecution does not prove the THC content of that “leafy green substance;”
  • All SC trial courts should suppress evidence found when a vehicle search was based solely on the smell of marijuana and should direct verdicts at trial when the prosecution has not proven the THC content of the substance found; and
  • SC’s appellate courts need to provide guidance for the lower courts and law enforcement as soon as this issue comes before them.

The odor of hemp alone should not be probable cause to search your car, because hemp is legal.

Marijuana Defense Lawyer in Conway, SC

If you have been charged with marijuana possession in SC, get a local criminal defense attorney with over twenty years of trial experience on your side as soon as possible.

Contact criminal defense Lawyer Johnny Gardner today for a free consultation to find out how we can help.


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