N.C. Appeals Court rejects drug defendant’s argument about legalized hemp

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  • The N.C. Court of Appeals has rejected a drug defendant's argument that hemp legalization in North Carolina should lead judges to throw out his conviction.
  • The Watauga County defendant had argued that police use of a drug-sniffing dog is now a search because dogs cannot distinguish between legal hemp and illegal marijuana.

The N.C. Court of Appeals has refused to back a drug defendant who challenged his conviction based on the state’s legalization of industrial hemp. A unanimous three-judge appellate panel affirmed the conviction Tuesday in a Watauga County case.

A jury convicted Robert MacDonald Walters in October 2021 on a charge of methamphetamine possession. But Walters challenged the use of a drug-sniffing dog to detect the drug in his vehicle during a traffic stop one year earlier.

Courts have upheld the use of drug-sniffing dogs, but Walters’ lawyers argued that a change in state law should have prompted a review of court precedents. That’s because authorities found the methamphetamine in a bag that also contained marijuana.

“Defendant argues the dog sniff was a search because recent changes in North Carolina law – namely passage of the Industrial Hemp Act in 2015 legalizing the production, possession, and consumption of hemp – now renders drug-detecting dogs unable to differentiate between contraband and noncontraband items,” wrote Chief Judge Donna Stroud for the unanimous Appeals Court. “Because the dogs signal to THC, which is present in both marijuana and hemp, and because Defendant now has a legitimate privacy interest in hemp, Defendant argues the use of drug-detecting dogs in this context ‘runs afoul of the holding’” in a 2005 U.S. Supreme Court precedent called Illinois v. Caballes.

“Defendant argues the use of the dog is now a search, the deputies had no probable cause to search his truck, none of the exceptions to the warrant requirement for a search apply, the evidence of the methamphetamine should have been suppressed, and the trial court erred in denying his motion to suppress,” Stroud wrote.

Stroud and Judges Toby Hampson and Darren Jackson rejected the argument.

“Here, Defendant did not have a ‘legitimate privacy interest’ in his methamphetamine,” Stroud wrote. “The drug-sniffing dog was trained and certified to alert on methamphetamine, and Defendant did not create a ‘legitimate privacy interest’ as to the methamphetamine simply by storing it in the same bag with the hemp.”

The dog used in Walters’ case was “certified in cocaine, heroin, meth[amphetamine], and marijuana” and “was annually re-certified to detect these substances,” Stroud added. “The dog was trained to alert to the methamphetamine even in the absence of hemp.”

“Thus, Defendant’s argument that Caballes ‘must be re-examined due to industrial hemp’s legalization’ is simply not presented by the facts of this case, where the methamphetamine and hemp were in the same bag, and the canine was trained to detect both substances,” Stroud wrote.

“The legalization of hemp has no bearing on the continued illegality of methamphetamine, and the Fourth Amendment does not protect against the discovery of contraband, detectable by the drug-sniffing dog, because Defendant decided to package noncontraband beside it,” she wrote. “Additionally, we have repeatedly applied precedent established before the legalization of hemp, even while acknowledging the difficulties in distinguishing hemp and marijuana.”

“We need not re-examine the application of the Supreme Court’s holding in Caballes to a canine sniff based on the facts of this case,” Stroud concluded. “Defendant had no legitimate expectation of privacy in his contraband simply because it was stored together with non-contraband in his vehicle, the dog-sniff could detect the methamphetamine regardless of the presence of hemp, and the dog-sniff of Defendant’s truck did not constitute a search.”

Walters could appeal. With a unanimous Appeals Court decision, the N.C. Supreme Court faces no obligation to take the case.