State Supreme Court takes up challenge of law enforcement ‘smell searches’

The North Carolina Supreme Court will hear a case challenging a 2021 Greensboro police traffic stop search based on officers smelling the odor of marijuana and a “cover scent.” Defendant Tyron Lamont Dobson argues he never could have been convicted of a gun crime without the objectionable search.

A unanimous state Court of Appeals panel ruled against Dobson in April 2024.

Dobson’s lawyers petitioned the high court to review that decision 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 filed last summer.

“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 issued an order Friday rejecting Dobson’s petition on the first question but allowing 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 last April. “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.”