DAs, sheriffs, police chiefs urge top NC court to uphold conviction tied to ‘smell search’

Groups representing North Carolina’s district attorneys, sheriffs, and police chiefs all hope the North Carolina Supreme Court will uphold law enforcement searches based on the presence of marijuana odor and a “cover scent.”

A case at the state’s high court challenges those searches as unconstitutional.

Tyron Lamont Dobson was arrested on a gun charge in Greensboro in 2021. Officers stopped a car carrying Dobson as a passenger, then searched the car after smelling both marijuana and cologne in the vehicle. Dobson was later convicted of a gun-related crime.

Dobson’s lawyers contend that law enforcement had no probable cause for the search since illegal marijuana and legal hemp have the same smell and cologne is legal. Without probable cause, Dobson argues the search violated his Fourth Amendment rights.

Lower courts have ruled against Dobson. That includes a unanimous decision from the North Carolina Court of Appeals in April 2024.

The state Supreme Court agreed to take the case in March.

The North Carolina Conference of District Attorneys, North Carolina Sheriffs’ Association, and North Carolina Association of Chiefs of Police filed a friend-of-the-court brief in the case Wednesday.

“Defendant’s contentions essentially are that (1) marijuana odor can never contribute to probable cause because hemp, which is legal to possess, has the same odor and (2) the use of cologne is an innocent act that can have no bearing on probable cause,” wrote lawyers representing the three law enforcement groups. “This Court should reject Defendant’s argument and affirm the decision of the Court of Appeals, which made a straightforward application of the totality-of-the-circumstances test for probable cause.”

“The General Assembly’s choice to keep marijuana illegal in North Carolina is a policy decision that lies solely within its province,” the court filing continued. “To accept Defendant’s argument that marijuana odor can never contribute to probable cause for a search approaches the level of de facto legalization.”

“At the very least, such a ruling would mean that officers likely could never search an automobile based on marijuana odor and could never obtain a search warrant for a residence based on marijuana odor — even if other facts supporting probable cause were present,” the brief added.

“The totality-of-the-circumstances test for probable cause is not about certainties but instead is about probabilities,” the law enforcement groups argued.

“Here, law enforcement officers reached a common-sense conclusion about human behavior: the marijuana odor emanating from the car in which Defendant was a passenger made it probable that marijuana was present, even if there was some possibility that the odor was from something other than marijuana; and the use of another scent, while innocent in isolation, made it even more likely that marijuana was present because cover scents often are used in an attempt to mask marijuana odor. The Court of Appeals did not err by holding the officers had probable cause to search the car in which Defendant was a passenger,” the brief added.

“Defendant’s argument comes down to this: hemp is legal; hemp odor is indistinguishable from marijuana odor; and therefore, marijuana odor cannot contribute to probable cause for a search of an automobile. This argument misses the mark because such a ruling would require certainty rather than probability to justify a search,” the law enforcement officials argued.

Dobson’s lawyers petitioned the high court to take the case in July 2024, citing two different questions.

“Did the Court of Appeals err in rejecting Mr. Dobson’s outcome-determinative challenge to the findings of fact that the officers had smelled ‘marijuana’ (or the ‘odor’ thereof), given that it is now undisputed scientific fact that no human being can detect ‘marijuana’ by odor alone, following the General Assembly’s redefinition of that term?” asked lawyer Benjamin Kull in the Supreme Court petition.

“Did the Court of Appeals fail to conduct the requisite ‘totality of the circumstances’ analysis and instead evaluate the existence of probable cause by applying an unconstitutional new ‘double odor’ rule?” Kull added.

The state Supreme Court’s order this spring rejected Dobson’s petition on the first question but allowed his appeal on the “double odor” topic.

During a January 2021 traffic stop, Greensboro police “smelled what they believed to be the odor of marijuana,” according to the Appeals Court’s opinion. Officers “also smelled ‘a strong odor of cologne’ or ‘a strong fruity odor.’” After speaking with the car’s driver, officers conducted a probable-cause search for drugs.

Police found more drugs in the car, leading them to frisk Dobson. They found a gun lodged in his waistband and arrested him.

Dobson’s lawyers filed a motion to suppress the evidence but agreed to plead guilty to a gun crime when a trial judge denied the motion. Dobson continued to challenge the initial search.

“Defendant raises several arguments concerning prior opinions of our appellate courts regarding law enforcement officers’ identification of marijuana by odor alone,” Judge Valerie Zachary wrote for the state Appeals Court. “Like a number of similarly situated appellants before him, Defendant raises questions about the effect of the recent legalization of industrial hemp on those precedents.”

“However, in this case, law enforcement officers detected the odor of marijuana plus a cover scent. Accordingly, ‘we need not determine whether the scent … of marijuana alone remains sufficient to grant an officer probable cause to search a vehicle,’” Zachary wrote.

“[C]ontrary to Defendant’s arguments, the legalization of industrial hemp did not eliminate the significance of detecting ‘the odor of marijuana’ for the purposes of a motion to suppress. The legalization of industrial hemp ‘has not changed the State’s burden of proof to overcome a motion to suppress,’” Zachary explained.

“[O]fficers smelled the odor of marijuana, an odor that we have previously concluded continues to implicate the probable cause determination despite the legalization of industrial hemp,” the Appeals Court opinion continued.

Appellate judges rejected Dobson’s arguments about the impact of the second odor. “The detection — by several officers — of the cover scent provides a basis ‘in addition to the odor of marijuana to support probable cause to search the vehicle,” Zachary wrote.

Dobson’s Supreme Court petition labeled the Appeals Court’s analysis “constitutionally unsound.” “Why? Because that analysis effectively creates a new ‘double odor’ rule, which improperly reduces the requisite ‘totality of the circumstances’ review down to a formulaic box-checking exercise that only asks whether the two smells are present,” Kull wrote.

“If officers smell cologne at the same time they smell cannabis, then, logically, the presence of the cologne cannot always ‘intrinsically signal the presence’ of marijuana, rather than hemp,” he explained. “Sure, maybe that cologne is being used to mask the presence of marijuana. Or, maybe that cologne is being used as a personal fragrance by someone who, like Mr. Dobson and his companions, had just moments earlier left a nightclub on a Saturday night.”

“The point is that, at the time an officer detects the smells and decides to conduct a warrantless search, the officer cannot possibly know if the smell of the cologne ‘intrinsically signal[s]’ anything in particular,” Kull wrote. “This is why the presence of a cover scent — whether it be cologne, air freshener, or any other commonplace fragrance — is just one of the circumstances that is routinely considered whenever the totality of the circumstances must be considered.”

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