I’ve been overlaying developments across the legalization of hemp in North Carolina since 2018. By no means did I believe then that I’d nonetheless be engaged on the subject all this time later, however right here we’re. My final put up on In Re: J.B.P. lined the then most up-to-date developments round possible trigger and the odor of hashish. That opinion was withdrawn and has but to reissue, however subsequent circumstances have mainly affirmed the logic on which the case was determined. This month, the Courtroom of Appeals launched State v. Ruffin, COA24-276, ___ N.C. App. ___ (March 5, 2025), weighing in on evidentiary challenges to opinion proof figuring out a substance as marijuana, in addition to on jury directions for marijuana circumstances. This put up examines these and different current authorized developments impacting the state’s felony hashish regulation. Learn on for the main points.
Odor of Hashish = Possible Trigger. A number of readers have contacted me in regards to the In Re: J.B.P. opinion, questioning the place issues stand with the odor of hashish and possible trigger in gentle of the court docket withdrawing that opinion. Whereas a brand new opinion in J.B.P. has but to be launched, different circumstances have affirmed its primary premise that the odor of hashish stays possible trigger to look, seize, or arrest, even when a human is unable to odor the distinction between authorized hemp and unlawful marijuana. See, e.g., State v. Dobson, 293 N.C. App. 450, 454 (April 16, 2024) (“[T]he legalization of hemp didn’t get rid of the importance of ‘the odor of marijuana’ for functions of a movement to suppress.”); State v. Little, COA23-410, 905 S.E.second 907, 917 (Sept. 3, 2024) (“[T]he odor and sight of what the officers fairly believed to be marijuana gave them possible trigger to look.”); State v. Rowdy, COA24-64, 907 S.E.second 460, 469 (Oct. 15, 2024) (“[T]he odor of marijuana, alone, is adequate to determine possible trigger to look a car.”).
There are petitions for discretionary assessment pending on the North Carolina Supreme Courtroom in Little and Rowdy (in addition to different circumstances with the identical subject), so it’s attainable the excessive court docket will need to weigh in on this query. In the meantime, the Courtroom of Appeals has decided that the odor of hashish, standing alone, stays possible trigger, simply because it was previous to the legalization of hemp. That stated, possible trigger is at all times a query of the totality of circumstances, and totally different info, reminiscent of credible proof {that a} substance is in actual fact hemp and never marijuana, may result in a distinct consequence (as I mentioned in higher element within the J.B.P. put up).
Lay Opinion Figuring out a Substance as Marijuana. Whereas the possible trigger subject has been percolating by way of the appellate division for a while, solely lately did the Courtroom of Appeals handle opinion proof figuring out a substance as marijuana in a printed opinion. In State v. Ruffin, COA24-276___ N.C. App. ___ (March 5, 2025), a detective testified {that a} substance offered by the defendant “seemed to be marijuana.” The detective additionally acknowledged that there’s a distinction between hemp and marijuana and that he didn’t perceive the distinction between the 2 throughout cross-examination. See Appellant’s Br. 5. The defendant didn’t object to this lay opinion purporting to determine the substance as marijuana however requested the Courtroom of Appeals to think about whether or not the admission of this testimony amounted to plain error. Citing a number of circumstances pre-dating the legalization of hemp, the court docket rejected this argument. “In keeping with our caselaw, this identification was correctly admitted as a result of Detective Harrell is a regulation enforcement officer with correct coaching and expertise in narcotics.” Ruffin Slip op. at 8. Not solely did the admission of this testimony not quantity to plain error, it was not error in any respect. The court docket rejected the argument that extra was required beneath State v. Ward, 364 N.C. 144 (2010), which usually requires a scientifically legitimate chemical evaluation to determine managed substances. Noting that Ward restricted its holding to N.C. Evid. R. 702, the court docket discovered Ward inapplicable to put opinions provided beneath N.C. Evid. R. 701. Thus, the Ruffin court docket appears to point that the requirements for the admission of a lay opinion figuring out one thing as marijuana stay unchanged within the age of authorized hemp.
Knowledgeable Opinion Figuring out a Substance as Marijuana. Ruffin additionally addressed the propriety of an knowledgeable opinion figuring out a substance as marijuana and not using a dependable chemical evaluation. The suspected marijuana in Ruffin was despatched to the N.C. Crime Lab. The lab solely assessments for the presence of delta-9 THC and doesn’t decide the precise ranges of THC, leaving its analysts unable to scientifically distinguish hemp from marijuana. The analyst in Ruffin testified candidly on this level, figuring out the substance solely as belonging to the hashish genus and containing some undetermined degree of THC. The analyst admitted on cross-examination that she couldn’t distinguish authorized hemp from unlawful marijuana and acknowledged that the substance at subject may very well be hemp. As with the officer’s lay opinion, the protection didn’t object to this testimony. On attraction, the defendant once more complained that the admission of this testimony was plain error as an unreliable and unscientific knowledgeable opinion in violation of N.C. Evid. R. 702. As soon as once more, the court docket rejected this argument. The court docket first famous that beneath current precedent (once more, pre-dating the legalization of hemp), no chemical evaluation of marijuana was required in any respect. Inspecting the precise testimony given in regards to the chemical evaluation that was carried out within the case, the court docket decided that it remained a dependable methodology of figuring out marijuana—despite the fact that the analyst’s opinion did really not go that far. In line with the court docket:
[The analyst] testified that she examined proof submitted by the State in accordance with the procedures for figuring out marijuana in use by the Crime Lab on the time. These procedures included weighing the fabric, a macroscopic check, a preliminary check, a microscopic examination, and a confirmatory check. Based mostly on that testing, [the analyst] concluded that the plant materials was hashish containing THC, ‘focus of cannabinoid not decided.’ This Courtroom has persistently authorized of comparable procedures in our caselaw. Thus, the knowledgeable testimony figuring out the plant materials as marijuana was sufficiently dependable beneath Rule of Proof 702. Ruffin Slip op. at 12-13.
Right here, too, the court docket’s holding appears to point that nothing in regards to the legalization of hemp modified the evidentiary requirements for an knowledgeable opinion figuring out one thing as marijuana.
Jury Directions for Marijuana Circumstances. Ruffin addressed jury directions in a contemporary marijuana case as properly. The defendant requested for and acquired a modification to the sample jury instruction that the jury learn that hemp and hemp merchandise should not marijuana beneath state regulation. As soon as the court docket agreed to that instruction, the defendant agreed to the proposed jury directions with out objection. On attraction, the defendant argued plain error as soon as extra primarily based on the trial court docket’s failure to outline hemp within the directions. Particularly, the defendant argued that the jury ought to have been knowledgeable that hemp is hashish with a focus of not more than than 0.3% delta-9 THC, whereas marijuana has a focus of delta-9 THC exceeding that restrict. The court docket declined to search out that this amounted to plain error. Different challenges to the sufficiency of the proof and to the sentencing listening to have been likewise rejected, and the judgment of the trial court docket was affirmed in all respects.
Takeaways for Defenders. Very similar to with the possible trigger subject, the Ruffin court docket’s rulings on the proof factors mentioned above point out that nothing in regards to the existence of authorized hemp affected the pre-hemp case regulation allowing lay and knowledgeable opinion figuring out one thing as marijuana with out an correct scientific evaluation. Learn broadly, Ruffin signifies that future evidentiary challenges to marijuana identification proof could also be an uphill battle for defenders. Alternatively, learn narrowly, Ruffin may very well be cabined to a holding merely stating that the admission of those opinions was not plain error on the info of the case. Below the latter interpretation, the assertion by the court docket that admission of the lay opinion was not error in any respect is dicta, as is its assertion {that a} lab report which fails to differentiate hemp from marijuana is a dependable identification of marijuana. For defenders, it’s in all probability value persevering with to object to this sort of testimony as unhelpful to the jury (for the lay opinion) and unreliable (as to the knowledgeable opinion). It’s attainable that if a greater trial document was developed, the proof points have been objected-to and preserved, and a extra defendant-friendly commonplace of assessment was utilized on attraction, the end result may very well be totally different. A defender might voir dire the State’s knowledgeable or current knowledgeable testimony of their very own at a pretrial listening to difficult the admission of this sort of testimony at trial and construct an evidentiary document supporting the protection competition that these opinions are neither useful nor dependable. If presenting such an evidentiary problem, defenders ought to request that the trial court docket subject a written order with detailed findings to memorialize the court docket’s ruling. Even when witness is permitted to supply an identification opinion at trial, a defender may request for the opinions to be restricted like these provided in Ruffin—that the plant materials “seemed to be marijuana” and that the plant materials was decided to be “hashish, THC degree undetermined,” versus extra direct identifications of the substance as marijuana. Additional, as I’ve famous earlier than, the identical questions that may be used to problem the admissibility of this sort of proof additionally go to the burden that the jury ought to afford it. Even when an evidentiary problem is unsuccessful, the defendant stays free to argue to the jury that the testimony shouldn’t be believed.
So far as the jury instruction subject, defenders ought to pay attention to Ruffin and request modifications to the sample instruction in marijuana circumstances. “If a request is made for jury directions which is right in itself and supported by the proof, the trial court docket should give the instruction no less than in substance.” State v. Harvell, 334 N.C. 356 (1993) (quotation omitted). The sample instruction for marijuana trafficking offenses acknowledges the hemp subject in a footnote (see, e.g. N.C.P.I. – Crim. 260.17 at n.1), however the identical notation is lacking from the sample instruction on easy possession (N.C.P.I. – Crim. 260.10) and on possession with intent to fabricate/promote/ship marijuana (N.C.P.I. – Crim. 260.15) (amongst others).
Just like the defendant in Ruffin, defenders will desire a jury instruction noting that hemp and hemp merchandise are excepted from the definition of marijuana. Whereas the Ruffin court docket held it was not plain error for the trial court docket to fail to incorporate definitions of hemp and marijuana referencing their respective delta-9 THC ranges, such a request up entrance on the trial court docket degree would seemingly be an correct assertion of regulation, supported by the proof, and useful to the jury’s dedication of the info. If that’s the case, the defendant can be entitled to that further modification to the sample instruction as properly.
Hemp Rules Coming? The Common Meeting is as soon as once more contemplating imposing guidelines on the largely unregulated hemp business in North Carolina. A invoice is making its method by way of the Senate that may create labeling necessities, high quality assurance controls, age limits for hemp and hemp merchandise, focus limits for sure hemp-derived intoxicating cannabinoids, promoting guidelines, and extra. S.B. 265 would additionally create a number of new class A1 misdemeanor offenses for sure violations of the Act. The invoice was apparently crafted with substantial hemp business enter and assist, with no less than one business commentator calling it a “mannequin invoice” for different states in search of to control the sphere. If the invoice turns into regulation, you possibly can make sure you learn extra about it right here.
Readers, is the end in Ruffin in line with what you might be seeing on the trial degree? Do you will have ideas on the opinion, or on the proposed hemp invoice? The feedback operate of the weblog has been turned on for this put up, so share your ideas in case you like, or e-mail me instantly with any questions. I can at all times be reached at dixon@sog.unc.edu.
