IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-269

Filed 6 August 2024

Beaufort County, No. 20 JB 10

IN THE MATTER OF: J.B.P. 

Appeal by the State from orders entered 7 and 28 October 2022 by Judge Keith 

B. Mason in Beaufort County District Court. Heard in the Court of Appeals 28 

November 2023. 

Attorney General Joshua H. Stein, by Special Deputy Attorney General Zachary 

K. Dunn, for the State. 

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Wyatt B. 

Orsbon, for Other-Appellee J.B.P. 

CARPENTER, Judge.

The State appeals from two orders: one granting J.B.P.’s (the “Juvenile’s”)

motion to suppress and another dismissing his charges. On appeal, the State argues

that we should reverse the trial court’s orders because the trial court incorrectly 

concluded that the police lacked probable cause to search the Juvenile’s car. After 

careful review, we agree with the State. Accordingly, we reverse the trial court’s 

orders. 

I. Factual & Procedural Background

On 22 September 2022, Investigator Jason Cleary and Lieutenant Russell

Davenport of the Beaufort County Sheriff’s Office searched the Juvenile’s car. The 
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officers found marijuana, a digital scale, and a handgun during the search, which 

prompted the officers to file delinquency petitions1 against the Juvenile. The 

petitions alleged that the Juvenile possessed marijuana with the intent to sell or 

distribute, and that he carried a concealed handgun. On 3 October 2022, the Juvenile 

filed a motion to suppress evidence obtained from the search of his car. The Juvenile 

argued that the search violated the Fourth Amendment of the United States

Constitution. 

On 6 October 2022, the trial court heard arguments concerning the Juvenile’s 

motion. Evidence at the motion hearing tended to show the following. On 22 

September 2022, Lieutenant Davenport drove past the Juvenile’s car, which was 

parked outside of a suspected drug house. Lieutenant Davenport “was able to smell 

the odor of marijuana in the vicinity of the car.” Lieutenant Davenport had recently 

attended a hemp training program, and according to Lieutenant Davenport, based on

his training and experience, he could discern the difference between marijuana and 

hemp. Lieutenant Davenport radioed his observations to the “drug unit,” which 

included Investigator Cleary, who joined Lieutenant Davenport in surveilling the 

Juvenile’s car. 

1 “A juvenile petition is the pleading in a juvenile delinquency proceeding” that “must ‘contain 

a plain and concise statement, without allegations of an evidentiary nature, asserting facts supporting 

every element of a criminal offense and the juvenile’s commission thereof with sufficient precision 

clearly to apprise the juvenile of the conduct which is the subject of the allegation.’” In re J.U., 384 

N.C. 618, 621, 887 S.E.2d 859, 862 (2023) (quoting N.C. Gen. Stat. § 7B-1802). 
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Lieutenant Davenport then watched the Juvenile’s car leave the suspected 

drug house. The car returned to the house and left again. This time, Investigator 

Cleary followed and stopped the car. As suspected, the Juvenile was driving, and 

Investigator Cleary “could smell the odor of marijuana coming from inside the car.” 

Investigator Cleary also smelled the odor coming from the Juvenile’s person and 

noticed “bits and pieces of marijuana in the floorboard.” Based on his training and 

experience, Investigator Cleary testified that marijuana has a “very distinct strong 

smell,” and according to Investigator Cleary, while hemp does have a smell, it is “not 

as pungent and strong as marijuana.” Investigator Cleary searched the car and found 

a handgun, a digital scale, and 13.7 grams of marijuana. 

The trial court orally granted the Juvenile’s motion to suppress. On 28 October 

2022, the trial court reduced the ruling to a written order. In the order, the trial court 

concluded that Investigator Cleary properly stopped the Juvenile’s car, but he

improperly searched it. Specifically, the trial court concluded that “Investigator 

Cleary did not have probable cause to believe that the Vehicle was carrying 

marijuana rather than legal hemp, or any other controlled substance which would 

have justified a warrantless search of the Juvenile’s vehicle.” 

Before reaching these conclusions, the trial court took notice of a 2019 State 

Bureau of Investigation memo (the “SBI Memo”). The SBI Memo concluded that an 

officer’s supposed sight or smell of marijuana no longer establishes probable cause of 
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marijuana possession because marijuana is indistinguishable from hemp. 

Specifically, the trial court made the following findings: 

15. The Court took judicial notice of the State Bureau of 

Investigation Memo entitled “Industrial Hemp/CBD 

Issues” (hereinafter “the SBI Memo”) which was published 

in 2019 in response to proposed NC Senate legislation. 

This memo states that:

Hemp and marijuana look the same and have the same

odor, both unburned and burned. This makes it impossible 

for law enforcement to use the appearance of marijuana or 

the odor of marijuana to develop probable cause for arrest, 

seizure of the item, or probable cause for a search warrant. 

. . . Therefore, in the future when a law enforcement officer 

encounters plant material that looks and smells like 

marijuana, he/she will no longer have probable cause to 

seize and analyze the item because the probable cause to 

believe it is evidence of a crime will no longer exist since 

the item could be legal hemp.

16. None of the alleged controlled substances recovered 

from the Vehicle were ever subjected to any type of 

chemical analysis to determine if they were in fact 

marijuana.

17. Based on the SBI Memo, the Court finds that the

testimony of Investigator [Cleary] and Lt. Davenport that

they observed marijuana in the Vehicle, and that they

smelled marijuana from the Vehicle, rather than legal 

hemp, is not credible.

Because the trial court suppressed all the evidence against the Juvenile, the 

trial court also entered an order dismissing the charges from the Juvenile’s petition. 

The State timely filed written notices of appeal from the order granting the motion to 

suppress and the order dismissing the Juvenile’s charges. 
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II. Jurisdiction

This Court has jurisdiction under N.C. Gen. Stat. § 15A-1445(a)(1) (2023). 

III. Issue

The issue on appeal is whether the trial court erred by granting the Juvenile’s 

motion to suppress, which led to a dismissal of his charges. More specifically, the 

issue is whether the trial court erred by concluding that an officer’s purported sight 

or smell of marijuana does not create probable cause to suspect marijuana 

possession.2 

IV. Analysis

A. Standard of Review 

We review a motion-to-suppress order to see “whether competent evidence 

supports the trial court’s findings of fact and whether the findings of fact support the 

conclusions of law.” State v. McCrary, 237 N.C. App. 48, 51–52, 764 S.E.2d 477, 479 

(2014) (quoting State v. Biber, 365 N.C. 162, 167–68, 712 S.E.2d 874, 878 (2011)). We 

review the order’s conclusions of law de novo. Id. at 52, 764 S.E.2d at 479. Under a 

de novo review, this Court “‘considers the matter anew and freely substitutes its own 

judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 

2 The State specifically states that it “does not challenge the trial court’s conclusion that 

Investigator Cleary possessed a reasonable articulable suspicion of criminal activity which justified 

the initial stop of the Juvenile’s vehicle.” The State also does not challenge the trial court’s decision 

to take judicial notice of the SBI Memo. Accordingly, we address neither the initial stop nor the 

judicial notice. 
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669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen Ltd. P’ship, 356 N.C. 

642, 647, 576 S.E.2d 316, 319 (2003)).

B. The Fourth Amendment 

The Fourth Amendment of the United States Constitution prohibits 

“unreasonable searches and seizures.” U.S. CONST. amend. IV. The Fourth 

Amendment applies to the State, State v. Campbell, 359 N.C. 644, 659, 617 S.E.2d 1, 

11 (2005), and it prohibits the State from unreasonably searching vehicles, see State 

v. Spruill, 33 N.C. App. 731, 733–34, 236 S.E.2d 717, 718–19 (1977).

Generally, searches conducted without a warrant are “per se unreasonable 

under the Fourth Amendment—subject only to a few specifically established and 

well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 

514, 19 L. Ed. 2d 576, 585 (1967) (footnote omitted). One such exception is when

there is probable cause that a vehicle contains contraband, such as a controlled 

substance. State v. Degraphenreed, 261 N.C. App. 235, 241, 820 S.E.2d 331, 336 

(2018). 

Probable cause is “a reasonable ground” to suspect criminal activity. State v. 

Yates, 162 N.C. App. 118, 122, 589 S.E.2d 902, 904 (2004) (quoting State v. Harris, 

279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971)); Maryland v. Pringle, 540 U.S. 366, 

371, 124 S. Ct. 795, 800, 157 L. Ed. 2d 769, 775 (2003) (“[T]he substance of all the 

definitions of probable cause is a reasonable ground for belief of guilt . . . .” (quoting 
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Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879, 

1890 (1949))). 

Probable cause requires only a probability of guilt, not absolute proof of guilt. 

Illinois v. Gates, 462 U.S. 213, 243 n.13, 103 S. Ct. 2317, 2335 n.13, 76 L. Ed. 2d 527, 

552 n.13 (1983). Probable cause does not turn on the innocence or guilt of conduct—

but instead on the “degree of suspicion that attaches to” the conduct. Id. at 243 n.13, 

103 S. Ct. at 2335 n.13, 76 L. Ed. 2d at 552 n.13. “[T]herefore, innocent behavior

frequently will provide the basis for a showing of probable cause . . . .” Id. at 243 n.13, 

103 S. Ct. at 2335 n.13, 76 L. Ed. 2d at 552 n.13 (emphasis added). 

C. Marijuana & Hemp

It is unlawful for someone in North Carolina to possess a controlled substance, 

and marijuana is a controlled substance. See N.C. Gen. Stat. §§ 90-94(b)(1), -95(a)(3) 

(2023). In 2015, however, the General Assembly passed the Industrial Hemp Act (the 

“IHA”), “which legalized the cultivation, processing, and sale of industrial hemp 

within the state, subject to the oversight of the North Carolina Industrial Hemp 

Commission.” State v. Parker, 277 N.C. App. 531, 539, 860 S.E.2d 21, 28 (2021) (citing 

N.C. Gen. Stat. § 106-568.50). “Industrial hemp is a variety of the species Cannabis 

Sativa—the same species of plant as marijuana.” Id. at 539, 860 S.E.2d at 28. 

In the past, we have held that the sight or smell of marijuana inside a vehicle 

establishes probable cause to search that vehicle. E.g., State v. Mitchell, 224 N.C. 

App. 171, 175, 735 S.E.2d 438, 442 (2012). But the Parker Court recognized the 
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question created by the IHA: Because illegal marijuana is so similar to legal hemp, 

does perceived sight or smell of marijuana, without more, still establish probable 

cause of marijuana possession? 277 N.C. App. at 541, 860 S.E.2d at 29. The Parker

Court, however, did not directly answer the question because there, officers “had 

more than just the scent of marijuana to indicate that illegal drugs might be present 

in the car.” See id. at 541, 860 S.E.2d at 29.

D. The SBI Memo 

With all due respect to the executive branch, an agency’s legal interpretation 

is not controlling. See State ex rel. Utils. Comm’n v. Pub. Staff-N.C. Utils. Comm’n, 

309 N.C. 195, 211–12, 306 S.E.2d 435, 444–45 (1983). The judicial branch—not the 

executive or legislative—is the final arbiter of the law. Id. at 212, 306 S.E.2d at 445; 

see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60, 73 (1803) (“It is 

emphatically the province and duty of the judicial department to say what the law 

is.”); Bayard v. Singleton, 1 N.C. 5, 6–7, 1 Mart. 48, 49–50 (1787) (establishing the 

doctrine of judicial review in North Carolina, several years before Marbury).

E. Application 

First, we must address the trial court’s reliance on the SBI Memo. Because of 

the IHA, the SBI Memo states that police no longer have probable cause to suspect

marijuana possession simply because police see or smell what they believe to be 

marijuana. This is because, according to the SBI, “[h]emp and marijuana look the 

same and have the same odor, both unburned and burned.” 
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The trial court erred by accepting the SBI’s probable-cause analysis: We 

conclude that the SBI Memo conflicts with the Fourth Amendment. See, e.g., Pringle, 

540 U.S. at 371, 124 S. Ct. at 800, 157 L. Ed. 2d at 775. Moreover, the SBI is not the 

ultimate arbiter of whether probable cause exists to support a search. See Marbury, 

5 U.S. (1 Cranch) at 177, 2 L. Ed. at 73. The SBI may, as a matter of policy, instruct 

its agents not to charge under these circumstances, but the SBI lacks authority to 

declare that an officer cannot establish probable cause under these circumstances.

Whether an officer had probable cause at the time of a search is for the courts to 

discern.

Here, after lawfully stopping the Juvenile’s car, Investigator Cleary smelled 

what he believed to be marijuana odor coming from inside of the car. He also observed

what he believed to be bits of marijuana on the floor of the car. This evidence, without 

more, created a reasonable probability that the car contained marijuana. See Yates, 

162 N.C. App. at 122, 589 S.E.2d at 904. Thus, this evidence established probable 

cause that the car contained marijuana. See Pringle, 540 U.S. at 371, 124 S. Ct. at

800, 157 L. Ed. 2d at 775. 

Marijuana is contraband, see N.C. Gen. Stat. §§ 90-94(b)(1), -95(a)(3), and even 

if illegal marijuana could be confused with legal hemp, a police officer’s professed 

sight or smell of marijuana creates a probability of contraband possession. See Gates, 

462 U.S. at 243 n.13, 103 S. Ct. at 2335 n.13, 76 L. Ed. 2d at 552 n.13. Therefore, the 

officers’ warrantless search of the Juvenile’s car complied with the Fourth 
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Amendment because the officers had probable cause to believe that the car contained

contraband. See Degraphenreed, 261 N.C. App. at 241, 820 S.E.2d at 336. 

The foundation of the trial court’s contrary conclusion is that Investigator 

Cleary’s suspicion of marijuana possession could have been based on legal behavior: 

hemp possession. And based on the SBI Memo, the trial court did not believe that 

Investigator Cleary could distinguish between illegal marijuana and legal hemp. 

Therefore, the trial court concluded that Investigator Cleary could not establish 

probable cause of marijuana possession only through his purported sight or smell of 

marijuana. 

But the trial court’s conclusion requires an elevated probable-cause standard. 

See Gates, 462 U.S. at 243 n.13, 103 S. Ct. at 2335 n.13, 76 L. Ed. 2d at 552 n.13. For 

the sake of argument, we will accept the SBI Memo’s factual premise: Hemp and 

marijuana are indistinguishable. It does not follow, however, that the possibility of 

confusing marijuana with hemp prevents probable cause of marijuana possession. 

This is because probable cause does not turn on the innocence or guilt of conduct. See 

id. at 243 n.13, 103 S. Ct. at 2335 n.13, 76 L. Ed. 2d at 552 n.13 (stating that “innocent 

behavior frequently will provide the basis for a showing of probable cause” (emphasis 

added)). 

The Fourth Amendment probable-cause test is whether it was reasonable for

Investigator Cleary to believe that his sight and smell of what he thought was 

marijuana created a reasonable likelihood that Defendant illegally possessed 
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marijuana. See Yates, 162 N.C. App. at 122, 589 S.E.2d at 904. We hold that it was. 

If Investigator Cleary confused legal hemp for illegal marijuana, that fact must be 

proven at trial under the beyond-a-reasonable-doubt standard—not at suppression 

hearing under the probable-cause standard.

V. Conclusion

We conclude that the trial court erred by granting the Juvenile’s motion to 

suppress and dismissing his charges. Contrary to the trial court’s conclusion, a police 

officer’s sight or smell of marijuana creates probable cause of marijuana possession, 

even if a police officer could possibly confuse illegal marijuana with legal hemp. We 

therefore reverse the trial court’s orders. 

REVERSED. 

Judges COLLINS and WOOD concur.