Is the smell of hemp probable cause in SC?

I mean, I suppose it is – hemp smells like marijuana – until the SC Supreme Court decides a case with this issue.

But, if hemp is legal in SC, and cops are unable to distinguish the smell and appearance of hemp (legal) from the smell and appearance of marijuana (not legal), and they are unable to determine the THC content of the plant, how can the smell of marijuana (which is also the smell of hemp) be probable cause that a crime is being committed?

Other states have also legalized hemp after the federal government removed industrial hemp from the Controlled Substances Act. Have they decided if the smell of hemp is still probable cause in those states?

What about states that have legalized marijuana for recreational or medical use? Is the odor of marijuana still probable cause to search someone or to search their car?

Is the Smell of Hemp Probable Cause?

As far as I know, SC’s appellate courts have not had the opportunity yet to hear this argument. Last year, the federal government removed hemp from the Controlled Substances Act. Soon after, SC authorized hemp farming without limits in our state and did not make it a crime to possess hemp (although SC law enforcement officials are threatening to charge people with the nonexistent crime of possession of hemp).

Why would possession of hemp, a plant that does not get people high, be a crime?

Is the Smell of Hemp Probable Cause in SC?

In SC, police are going to say, “I smelled an overpowering odor of marijuana coming from the suspect’s vehicle…”

That’s probable cause to search.

It’s pretty much probable cause no matter how ridiculous the officer’s claim is. For example, when an officer’s drug dog did not alert on a car, and no marijuana was found in the car, the SC Supreme Court still accepted the officer’s claim that he smelled the odor of marijuana and held that was probable cause.

It’s probable cause to search because marijuana is illegal. Therefore, they can search for the marijuana that they smell and then arrest you for whatever else they find (whether there was marijuana in the car or not).

But, hang on a sec. Police are going to choose their words to support a finding of probable cause. But couldn’t the officer just as easily have said, “I smelled an overpowering odor of hemp coming from the suspect’s vehicle…”

There is no crime of “possession of hemp” in SC, although it looks like that might need to be tested by the courts. Hemp is not a controlled substance if it contains a THC content of .3% or less. But police have no way to test the THC content of that “green leafy substance” they just found, so they can’t tell the difference between a bag of marijuana and a bag of smokable hemp anyway.

If the smell of hemp could mean the person is engaging in lawful activity or it could mean the person is engaging in unlawful activity, is that still probable cause?

What About in Other States?

As far as I know, no court has decided this issue yet – if you know of a decision, let me know in the comments or by email.

Other states have decided that the smell of marijuana is not probable cause to search in states that have legalized or decriminalized marijuana. For example, the Court of Appeals of Maryland held last year in Pacheco v. State that the smell of marijuana is not probable cause to search because small amounts of marijuana (10 grams or less) were decriminalized (subject to a fine only).

The Court’s opinion begins with a quote:

“The times they are a-changin’.”

—Bob Dylan, The Times They Are a-Changin’

Although the smell of marijuana could indicate that a person possesses a larger amount of marijuana – more than 10 grams, it could also indicate that a person has less than 10 grams of marijuana, which is not a criminal offense.

Similarly, in SC, the smell of marijuana could indicate that a person possesses marijuana, which is still a crime here even if it’s just a crumb. But it could also indicate that a person possesses hemp – not a crime and indistinguishable from marijuana unless and until officers have a means of determining the THC content of plant material on the roadside.

Are Drug Dog Alerts Still Probable Cause if Hemp is Legal?

If a drug dog is trained to alert to a legal substance – hemp in SC or marijuana in states that have legalized – can that still be considered probable cause to search?

In 2017, the Colorado Court of Appeals reversed a drug conviction, finding that, because a dog sniff could reveal possession of an ounce or less of marijuana (lawful conduct) or it could reveal unlawful conduct, a drug dog alert is not probable cause to search (unless the dog is trained to not alert to the smell of marijuana):

Because a dog sniff of a vehicle could infringe upon a legitimate expectation of privacy solely under state law, that dog sniff should now be considered a “search” for purposes of article II section 7 of the state constitution where the occupants are twenty-one years or older. Cf. Kyllo v. United States, 533 U.S. 27, 34-40 (2001) (the use of a thermal imaging device to detect the growth of marijuana in a home was a “search” under the Fourth Amendment because the device was capable of detecting lawful activity).

They based their decision on their state constitution rather than the federal constitution (the decision cannot be overturned by a federal court).

It shouldn’t be long before the question of whether the smell of hemp is probable cause to search in SC winds up in the appellate courts. And SC police, like police departments across the country, may want to start looking at drug dogs that are not trained to alert on the smell of marijuana alone – eventually, simple possession of marijuana is going to be legalized nationwide.

Drug Crimes Defense Lawyer in Charleston, SC

Charleston, SC marijuana defense attorney Grant B. Smaldone accepts criminal defense cases in the Charleston, Dorchester, Georgetown, and Myrtle Beach areas of SC. If you’ve been charged with any marijuana offense in South Carolina, including:

• Simple possession,
• Possession with intent to distribute,
• Distribution,
• Manufacturing, or
• Trafficking in marijuana,

Call now at (843) 808-2100 or send us a message for a free consultation about your case.