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NC appeals court: Pot search lawful despite hemp similarity


Although illegal marijuana and lawful hemp look and smell the same, criminal prosecution for pot in North Carolina can still be legitimate when sight or odor contributes to a warrantless search and seizure, the state Court of Appeals ruled on Tuesday.

A three-judge panel found no errors related to a trial judge or attorney for Derek Edwin Highsmith, who was convicted last year of felony marijuana possession stemming from a Duplin County traffic stop in 2017. He was sentenced to a maximum of a little over four years in prison.

Highsmith argued unsuccessfully at a hearing before his trial that the evidence collected after a K-9 alerted officers to possible drugs inside the vehicle he was in should have been suppressed because it was unlawfully obtained. That's noteworthy, according to the opinion while citing Highsmith, with legalized hemp now widely available.

Superior Court Judge Henry Stevens IV denied Highsmith's suppression motion, saying the K-9's positive alert for narcotics, along with other factors, provided officers with the facts to find probable cause to conduct the search. The prosecutor called it a “K-9 sniff-plus case,” Tuesday's opinion said.

Sheriff's officers said they saw a vehicle that left a residence after many complaints about narcotics sales there, according to the opinion.

The officers, who stopped the car after noticing the vehicle had a broken brake light and crossed the center line, recognized Highsmith, a vehicle passenger, from other marijuana-related activities and called for a K-9 unit. Meanwhile, the officers noticed a box of ammunition sitting in a rear seat and collected other unusual or inconsistent information.

After the dog arrived and alerted the officers, the search turned up a plastic bag that they believed to be marijuana, as well as $1,200 in cash on Highsmith and a digital scale. He ultimately was indicted on several charges.

Writing the unanimous opinion, Court of Appeals Judge Lucy Inman said that Stevens adequately explained how the marijuana was lawfully seized. Stevens also didn't err by failing to tell jurors that the state needed to prove Highsmith had actual knowledge that the bag contained marijuana and not hemp, Inman wrote.

"Given the above circumstances under which the contraband was found ... we cannot conclude that the absence of an actual knowledge instruction had a probable impact on the jury’s verdict," she added.

Judges John Arrowood and April Wood joined in the opinion, which the state Supreme Court isn't obligated to hear because of its unanimity.

Gov. Roy Cooper signed legislation in June that made hemp industry products — CBD among them — permanently exempt from the state’s controlled substances law. Hemp contains a very low amount of chemical that gives the high to marijuana users.

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