Wake Forest Law Review

By Katharine Batchelor

On August 20, 2019, the North Carolina House passed its version of Senate Bill 315, the North Carolina Farm Act of 2019, sending it to the North Carolina Senate for a vote.[1] The bill, intended originally to expand the industrial hemp industry in North Carolina, revises the definition of “hemp product” to exclude smokable hemp, effectively banning smokable hemp.[2] That one revision is currently the source of great debate, with the state’s farmers and agriculture industry on one side and law enforcement on the other.[3] Before explaining the significance of this particular controversy, let me take two steps back and explain the root cause of the conflict.

A Quick Background on Hemp Legislation

In 2014, the 113th Congress passed a bill permitting state departments of agriculture to establish pilot programs for growing industrial hemp, if state law allowed.[4] In 2015, the N.C. General Assembly passed Senate Bill 313 which created the Industrial Hemp Commission to oversee the licensing and regulation of hemp farmers.[5] Since the creation of the Commission, industrial hemp production has boomed, with 634 licensed farmers currently growing on over 8000 acres and 3.4 million square feet of greenhouse space, at a time when the state’s farmers need the bump.[6] The declining demand for tobacco and trade issues with China have hurt North Carolina farmers, who currently produce half of all tobacco in the United States.[7] Hemp production has received another boost on a national-level when President Trump signed the 2018 Farm Bill into law, which reclassified hemp products from a controlled substance to an agricultural commodity.[8]

Is the THC less than 0.3%? Hemp v. Marijuana

Taking one more step back, it is important to understand the difference (and the similarities) between hemp and its closely-related cousin, marijuana. Hemp and marijuana are both part of the cannabis plant family, they are simply two different varieties.[9] There are a few types of hemp, one grown predominately for its seeds, another for its fiber, and another for its floral buds from which CBD is extracted.[10] The latter variety is the kind used for smokable hemp and thus where the problem lies. As the North Carolina State Bureau of Investigation (SBI) put it, “This type looks just like marijuana, including the leaves and buds, and it smells the same as marijuana. In fact, there is no way for an individual to tell the difference by looking at the plant; one would need a chemical analysis to tell the difference.”[11] Indeed, the only difference between hemp and marijuana is the amount of tetrahydrocannabinol, or THC, which is the psychoactive chemical in marijuana that produces a high when smoked.[12] Hemp products must contain 0.3% or less THC; anything greater and it is considered illegal.[13] While the N.C. Department of Agriculture utilizes private labs to test for the percentage of THC, the SBI crime lab currently only tests for the presence of THC and not the percentage of THC.[14] Why does that matter? Two words: probable cause.

The Impact of Hemp on Probable Cause

Under existing North Carolina case law, probable cause only requires law enforcement officers to reasonably believe that there is a “probability or substantial chance” of criminal activity.[15] To seize an item, an officer simply has to believe that it is evidence of a crime.[16] The existence of legal, smokable hemp thus creates a huge issue for the way marijuana is currently policed, investigated, and prosecuted.[17] In State v. Fletcher, the North Carolina Court of Appeals upheld a marijuana conviction based on an officer identifying marijuana visually using her experience and training.[18] Now, however, if an officer cannot distinguish on sight between hemp and marijuana, then that officer does not have probable cause to seize evidence or make an arrest, because the cannabis plant material an officer sees or smells could very well be smokable hemp – a legal commodity people are free to use whenever and wherever.[19]

Law enforcement agencies across the state have acknowledged the impact of smokable hemp on marijuana enforcement.[20] In fact, the SBI stated that at least one district attorney’s office has stopped prosecuting marijuana possession because officers can no longer distinguish hemp from marijuana; thus there is no evidentiary grounds for a conviction.[21] Many have even forecasted that the continued legality of smokable hemp could lead to the legalization of marijuana in North Carolina.[22] While there are tests to determine the amount of THC in a substance, there currently is no field test available to North Carolina law enforcement to use on site and again, the SBI currently only tests for the presence of THC.[23] The visual identification evidence by which so many marijuana cases are prosecuted is no longer available to law enforcement and prosecutors.

Senate Bill 315

In response to law enforcement’s concerns, a Senate subcommittee revised SB 315 to ban smokable hemp on June 6.[24] “Hemp product does not include smokable hemp.”[25] That version of the bill passed the Senate on June 18. Almost immediately, the state’s farmers spoke out in protest with the Industrial Hemp Commission calling on the N.C. General Assembly to keep smokable hemp legal.[26] The smokable hemp bud is more lucrative for farmers and many have already invested in new equipment and seed because the state has been loosening hemp laws since 2015.[27] That single revision, which would go in effect on May 1, 2020, could diminish farmers’ ability to obtain the necessary crop insurance and to compete with other states where smokable hemp is legal.[28]

Nevertheless, SB 315 made its way to the N.C. House where representatives went one step further in response to the impact of smokable hemp on probable cause. Before voting to pass the bill as a whole, the House passed the following amendment to the section titled, “Exclusion or suppression of unlawfully obtained evidence:”[29]

(a1) If evidence was obtained as the result of a search that was supported by probable cause at the time of the search, no evidence obtained as a result of that search shall be suppressed solely on the basis of either of the following:
(1) A subsequent determination that a substance believed to be a controlled substance at the time of the search was not a controlled substance.
(2) A subsequent determination that the presence of a controlled substance at the time of the search was not a violation of law.

In essence, the amendment returns probable cause based on visual identification to law enforcement and allows officers to search and arrest for suspected marijuana using sight and smell alone.[30] Furthermore, the amendment explicitly states that even if officers later determine a substance is a legal hemp product, any evidence found through a search can be used as evidence for other charges: the evidence is not fruit of the poisonous tree.[31] This amendment raises significant constitutional questions regarding legal search and seizure, which at least two Republican representatives highlighted before the House voted on the bill.[32]  The bill was sent to the Senate Committee on Rules and Operations on August 22, which has to approve the current edition before it is sent to the governor.[33]

Whether the current edition[34] of the bill is signed into law remains to be seen. With two of the state’s most influential groups, law enforcement and farmers, on opposing sides, it’s likely that this debate isn’t over quite yet, and SB 315 could evolve once again before it passes into the hands of Roy Cooper.


[1] Dawn Baumgartner Vaughan, NC House Votes for Ban on Smokable Hemp, Reacting to Police Concern Over Pot Arrests, Charlotte Observer (Aug. 21, 2019, 12:12 PM), https://www.charlotteobserver.com/news/politics-government/article234178387.html (quoting Fen Rascoe, a North Carolina Industrial Hemp Commission member and hemp farmer).

[2] S.B. 315 – 10th Ed., Gen. Assemb., 2019 Sess. (N.C. 2019), https://www.ncleg.gov/Sessions/2019/Bills/Senate/PDF/S315v10.pdf.

[3] Vaughan, supra note 1.

[4] Industrial Hemp Pilot Program in North Carolina, N. C. Dep’t of Agric. & Consumer Serv., https://www.ncagr.gov/hemp/index.htm (last visited Sept. 19, 2019).

[5] S.B. 313, Gen. Assemb., 2015 Sess. (N.C. 2015), https://www.ncleg.net/Sessions/2015/Bills/Senate/PDF/S313v5.pdf.

[6]  Matthew Burns, NC Sees Hemp as Next Big Cash Crop, WRAL (Mar. 20, 2019), https://www.wral.com/nc-sees-hemp-as-next-big-cash-crop/18273125/.

[7] Heather Wilkerson, North Carolina Farmers Embrace Hemp as the Market for Tobacco Dwindles, Green Entrepreneur (June 11, 2019), https://www.greenentrepreneur.com/article/334739; Will Doran, NC Lawmakers See Hemp as the State’s Next Big Cash Crop. But Police are Opposed., Raleigh News & Observer (June 11, 2019, 8:19 PM), https://www.newsobserver.com/news/politics-government/article231439078.html.

[8] John Hudak, The Farm Bill, Hemp Legalization and the Status of CBD: An Explainer, Brookings (Dec. 14, 2018), https://www.brookings.edu/blog/fixgov/2018/12/14/the-farm-bill-hemp-and-cbd-explainer/.

[9] Industrial Hemp Pilot Program in North Carolina: Frequently Asked Questions, N. C. Dep’t of Agric. & Consumer Serv., https://www.ncagr.gov/hemp/FAQs.htm (last visited Sept. 19, 2019).

[10] Id.

[11] N.C. State Bureau of Investigation, Memo on Industrial Hemp/CBD Issues (May 2019), https://www.sog.unc.edu/sites/www.sog.unc.edu/files/doc_warehouse/NC%20SBI%20-%20Issues%20with%20Hemp%20and%20CBD%20Full.pdf.

[12] Id.

[13] Id.

[14] Id.

[15] State v. Riggs, 328 N.C. 213, 219 (1991).

[16] N.C. State Bureau of Investigation, supra note 11.

[17] Paul A. Specht, Some NC Lawmakers Want to Ban Smokable Hemp. It Looks Too Much Like Marijuana, They Say., Charlotte Observer (July 23, 2019, 7:36 PM), https://www.charlotteobserver.com/news/politics-government/article233012142.html.

[18] State v. Fletcher, 92 N.C. App. 50, 56 (N.C. Ct. App. 1988).

[19] Phil Dixon, Hemp or Marijuana?, U.N.C. Sch. of Gov’t: N.C. Crim. Law (May 21, 2019, 10:14 AM), https://nccriminallaw.sog.unc.edu/hemp-or-marijuana/.

[20] Specht, supra note 17.

[21] N.C. State Bureau of Investigation, supra note 11.

[22] Specht, supra note 17.

[23] N.C. State Bureau of Investigation, supra note 11.

[24] N.C. Senate Comm. on Agric./Env’t/Nat. Resources, PCS 15357 (2019) https://webservices.ncleg.net/ViewBillDocument/2019/4790/0/S315-PCS15357-TQf-5.

[25] Id.

[26] Specht, supra note 17.

[27] Id.

[28] Id.

[29] N.C. House, Amendment A1 to S.B. 315 (2019)  https://webservices.ncleg.net/ViewBillDocument/2019/6292/0/S315-ASA-85-V-1.

[30] Vaughan, supra note 1.

[31] Id.

[32] Id.

[33] Id.

[34] S.B. 315 – 10th Ed., Gen. Assemb., 2019 Sess. (N.C. 2019), https://www.ncleg.gov/Sessions/2019/Bills/Senate/PDF/S315v10.pdf.

By: Matthew Welch & Gilbert Smolenski

On March 1, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for United States v. Brian Bowman.  The court held that Bowman’s Fourth Amendment right, freedom from unreasonable seizures, was violated and reversed the district court ruling.

I. Facts and Procedural History

In the predawn hours the morning of June 20, 2015, Officer Waycaster was patrolling on Route 25 in Henderson County, North Carolina.  He received a tip from the DEA that two individuals driving a red, older model Lexus could be narcotics runners.  The DEA also provided a license plate number for the car.  At 3:40 a.m., Officer Waycaster spotted an older red Lexus.  Rather than stopping the vehicle based on information from the DEA, Officer Waycaster followed the car “looking for [his] own infractions . . . for [his own] reason to stop the vehicle.”  When the vehicle weaved over a fog line and accelerated to 10 mph over the speed limit, Officer Waycaster pulled the vehicle over, suspecting that the driver may have been under the influence.  The government agrees that the DEA tip should not be considered in any legal analysis.

After stopping the vehicle, Officer Waycaster noticed two men in the vehicle: Bowman, the driver, and Alvarez, the passenger.  Officer Waycaster testified that Bowman appeared nervous because his hands were shaking, he failed to make eye contact with Waycaster, and that his carotid artery was moving, indicating an elevated heart rate.  Officer Waycaster did not see any alcohol or firearms in the vehicle, but he did notice an energy drink in the center console, food wrappers, and a suitcase in the back seat.  Officer Waycaster explained why Bowman was stopped and then asked Bowman to exit the vehicle and go to the patrol car so that Officer Waycaster could check his information.  Alvarez remained in the passenger seat the entire time.

After Bowman exited the vehicle, he consented to a weapons frisk.  Officer Waycaster found no weapons.  Officer Waycaster then told Bowman to sit in the patrol car while Waycaster ran his driver’s license and registration.  While Officer Waycaster was running Bowman’s information, he asked Bowman where he was coming from.  Bowman said that he was heading home after picking up Alvarez from Alvarez’s girlfriend’s house.  He said he was returning the favor because Alvarez had done the same for him in the past. When questioned about the address of Alvarez’s girlfriend’s house, Bowman said he did not know it but that it was in his car’s GPS.  Officer Waycaster also asked Bowman what he did for a living.  Bowman replied, saying that he was a welder but was currently unemployed.  Bowman also said that he recently bought the Lexus off Craigslist.  Officer Bowman testified that this was a suspicious activity because “it was a known practice with narcotics traffickers to either use rental vehicles or use multiple, different vehicles, or buy and sell vehicles to transport narcotics.”  Officer Waycaster, believing that Bowman was not under the influence, then issued Bowman a ticket for speeding and unsafe movement of the vehicle.

Bowman then began to exit the vehicle but Officer Waycaster asked if he could speak further with Bowman.  Bowman consented.  After another round of questions about what Bowman and Alvarez had been doing that night, Officer Waycaster, who was seated in the patrol car with Bowman said that he “was going to ask [Alvarez] questions if you don’t mind, okay?”  Bowman responded, “okay,” and remained in the vehicle.  As Officer Waycaster exited the patrol car he told Bowman, “just hang tight right there, okay.”  Bowman responded with, “oh, okay.”  Office Waycaster testified that at this point, Bowman was not free to get out of the patrol car because Waycaster had developed, from the traffic stop alone, reasonable suspicion of criminal activity.

Office Waycaster then went back to the Lexus and interviewed Alvarez about what had transpired before the two men were pulled over.  Alvarez’s story conflicted with Bowman’s.  Officer Waycaster then return to the patrol car and asked Bowman if there was meth in the Lexus, to which Bowman responded no.  Bowman then refused to let Officer Waycaster search the Lexus.  Thereafter, Officer Waycaster removed Alvarez from the Lexus and placed him in the patrol car with Bowman.  Then Office Waycaster summoned a K-9 team.  The K-9 team passed around the outside of the Lexus.  The dog alerted an officer that illegal narcotics were present in the vehicle.  Thereafter, Office Waycaster and the K-9 handler searched the interior of the car.  They found meth, digital scales, and containers of ammunition.

Bowman was charged with possession with intent to distribute methamphetamine.  Bowman filed a motion to suppress the methamphetamine evidence, arguing that Officer Waycaster unlawfully prolonged the completed traffic stop without consent or reasonable suspicion.  The district court followed the recommendation of the magistrate judge in denying the motion to suppress.  The magistrate judge admitted that Bowman was not free to leave the patrol car but that the prolonged detention was permissible because “Waycaster had a justified, reasonable suspicion that Defendant Bowman was engaged in criminal activity.” The judge said that the totality of the circumstances supported this finding.  Bowman then filed an appeal.

II. Standard of Review

The Fourth Circuit reviews the district court’s determination that the officer had a reasonable suspicion to prolong the traffic stop de novo.

III. Reasoning

First, a traffic stop must be reasonable.  Here, Bowman does not challenge the reasonableness of the traffic stop.  Bowman was swerving and traveling 10 mph over the speed limit.  Instead Bowman’s Fourth Amendment challenge rests on the unreasonableness of his prolonged detention in the patrol car. The Fourth Amendment allows an officer to conduct an investigation unrelated to the reasons for the traffic stop as long as it does not lengthen the roadside detention.  To extend the length of the detention beyond the time necessary to accomplish the traffic stop’s purpose, an officer must have reasonable suspicion or receive the driver’s consent.  Here, the officer did not receive Bowman’s consent or have a reasonable suspicion.

The government argued that Bowman consented to the prolonged detention when he said “okay” after Officer Waycaster asked him to “hang tight right there, ok?”  However, under a reasonable person standard, the court said that this was not consent by Bowman.  Bowman never had time to respond to Officer Waycaster before Waycaster exited the vehicle and many would feel they were not free to leave in a similar situation. Furthermore, Waycaster was not asking a question, instead he was instructing Bowman what to do.  Thus, when Bowman remained in the patrol car as the officer went to question Alvarez, the encounter was no longer a consensual one but instead became a non-consensual seizure.

After the Fourth Circuit concluded the search constituted a non-consensual seizure, the Court then analyzed whether Waycaster’s “prolonged seizure was justified by reasonable suspicion.”  The Court noted there is no precise definition for what constitutes reasonable suspicion.  Instead, reasonable suspicion is a commonsense, nontechnical standard that considers the realities of everyday life.  The bar for reasonable suspicion is less than the probable cause standard and the facts articulated by the stopping officer and trial court must be taken in their totality.  However, each factor can be analyzed separately by the court before being taken together in a full consideration of the circumstances surrounding the traffic stop.

The Fourth Circuit focuses on four specific factors in its analysis.  First, Waycaster noted that both Bowman and Alvarez appeared to be nervous.  However, a driver’s nervousness is not a good indicator since most citizens are nervous when dealing with police.  The record indicated that Bowman and Alvarez did not exhibit any signs of nervousness above the norm, and the government conceded Bowman was calm once exiting the vehicle.  Moreover, although a suspect’s increased heart rate, which can be evidenced by a suspect’s throbbing carotid artery, can help support there was a reasonable suspicion of criminal activity, the present facts do not show Bowman demonstrated nervousness beyond the norm. The fact that Bowman remained calm in the patrol car and failed to make eye contact with an officer is not indicative of criminal behavior.  Thus, the first factor weighed in favor of the Bowman.

Second, Waycaster stated that several articles in the car, specifically clothes, food, and an energy drink, helped give rise to a reasonable suspicion.  However, these items are consistent with innocent travel and “in the absence of contradictory information,” cannot reasonably imply criminal activity.  While Bowman may have made false statements about his travel plans, the government failed to connect that fact to any wrongdoing in the case.  Therefore, just the articles alone cannot be used to established untruthfulness, and subsequently reasonable suspicion.

Third, the district court noted that Bowman’s inability to recall Alvarez’s girlfriend’s address contributed to Waycaster’s reasonable suspicion.  But, the Fourth Circuit stated this was entirely reasonable, as it is clear from the video recording that Bowman repeatedly said he used the car’s GPS to find the house, and Waycaster could find the address by looking at the car’s GPS history.  The government failed to connect Bowman’s response with criminal activity, and the Fourth Circuit stated it is reasonable that Bowman did not know the address and was relying on GPS in a dark, unfamiliar area.

Finally, Waycaster believed Bowman’s vehicle purchases gave suspicion of criminal activity since he thought it was strange Bowman could afford to purchase multiple vehicles while unemployed and the use of multiple cars was a known practice of drug traffickers.  The Fourth Circuit readily disposed of Bowman’s vehicle purchasing habits, noting that Waycaster made “unsubstantiated assumptions.”  Even though Bowman was unemployed, there are numerous possible explanations to explain the car purchases that are all within the confines of the law.  Likewise, innocent travelers may use multiple vehicles, some of which they could buy from Craigslist, and that fact is entitled to little weight.

Consequently, none of the factors alone provide a basis for reasonable suspicion.  Even when looking at the totality of the circumstances, as mandated by precedent, the Fourth Circuit similarly found that the “combination of wholly innocent factors” did not give rise to reasonable suspicion.  Therefore, the Fourth Circuit reversed the district court, as Bowman’s motion to suppress should have been granted.

 

By: Diana C. Castro

Today, in United States v. Jayad Zainab Ester Conteh, the Fourth Circuit affirmed by unpublished per curiam opinion the District Court of Maryland’s denial of a motion to suppress, holding there was probable cause to justify the issuance of a search warrant. The Fourth Circuit reviewed the District Court’s factual findings for clear error and its legal conclusions de novo.

Defendant Argues the Sworn Application Supporting her Arrest Warrant Was Insufficient to Establish Probable Cause.

On appeal the defendant raised three issues: (1) the sworn application supporting her arrest warrant was insufficient to establish probable cause; (2) the officer executing the warrant did not act in reasonable good faith reliance on the state commissioner’s determination of probable cause; and (3) the District Court abused its discretion in qualifying a witness as an expert in Sierra Leoneon Creole.

Defendant was Convicted of Conspiracy to Commit Bank Fraud, Aggravated Identity Theft, and Exceeding Authorized Access to a Computer Thereby Obtaining Information Contained in a Financial Record of a Financial Institution.

Conteh, a teller for the bank, accessed accounts with information personally identifying the account holders in a way that suggested her access was unauthorized. Several bank accounts were compromised when information for the accounts was changed and checks were ordered without authorization. Further, the owner of a vehicle observed attempting to retrieve checks ordered without authorization from one of the compromised accounts relied on a bank insider to provide him information.

Probable Cause to Justify an Arrest Means a Police Officer is Aware of Facts and Circumstances That Are Sufficient to Warrant a Prudent Person in Believing That the Suspect Has committed an Offense, Under the Circumstances Shown.

Determined by the totality of the circumstances, probable cause is a fluid concept that turns on the assessment of probabilities. United States v. Dickey-Bey, 393 F.3d 449, 453–54. In reviewing the state commissioner’s probable cause determination, the court may only ask whether the commissioner had a substantial basis for concluding there was probable cause. Under this standard, the court grants much deference to the commissioner’s assessment of the facts presented to him. United States v. Blackwood, 913 F.2d 139, 142 (4th Cir. 1990).

Taking the facts of this case as a whole, the commissioner had a substantial basis to conclude that the supporting application established probable cause.

Alternatively, the Fourth Circuit Rejects the Defendant’s Claim That the Officer Did Not Rely on the Warrant in Good Faith.

Under the good faith exception, created by the Supreme Court of the United States in United States v. Leon, evidence obtained from an invalid warrant will not be suppressed if the officer’s reliance on the warrant was objectively reasonable. United States v. Perez, 393 F.3d 457, 461 (4th Cir. 2004).

Leon identifies four ways in which an officer’s reliance on a warrant would not qualify as good faith reliance. Conteh argued one of these exceptions, noting that an officer’s reliance on a warrant would not qualify as good faith if the warrant was so facially deficient that no reasonable officer could presume its validity.

However, the Court rejected, as unsupported by the record, Conteh’s assertion that probable cause is lacking because the application contains a “significant misstatement” that she was the individual who changed the information.

Reviewing for Abuse of Discretion, the Fourth Circuit Affirmed the District Court’s Decision to Qualify an Expert Witness.

In ensuring that evidence is reliable under Fed. R. Evid. 702, a district court “must decide whether the expert has ‘sufficient specialized knowledge to assist the jurors in deciding the particular issues in the case.’” Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 162 (4th Cir. 2012). In making this decision, the court should “consider the proposed expert’s full range of experience and training.” United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009). Federal Rule of Evidence 702 “does not require any particular imprimatur.” United States v. Gutierrez, 757 F.3d 785, 788 (8th Cir. 2014).

Despite the facts that the witness does not hold degrees in Sierra Leoneon Creole, works as a teacher in another field, and had not acted as a translator for any government agency prior to his involvement in the case at bar, the Court concluded that the witness was properly qualified as an expert in Sierra Leoneon Creole based on his education and experience with the language. The witness testified regarding messages in Sierra Leoneon Creole obtained from the cellular phone seized from Conteh incident to her arrest.

Court of Appeals for the Fourth Circuit Affirmed.