This lawyer dangled a baggie of cannabis in front of the NC Supreme Court and dared the cops to arrest him

A story about the smell of weed, the state of pot in North Carolina, and why so many products somehow are able to hint that they'll get you high, legally.

NOTE: I made this story into a podcast and a YouTube video, so if you’re tired of reading words, you can just watch or listen to this article instead!

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Behold, the Carrot Top of lawyering:

Attorney Benjamin Kull holds up a baggie of cannabis during arguments before the North Carolina Supreme Court on Sept. 9, 2025.

That, friends, is a prop. My man is, during his closing argument, holding up a baggie of what looks like marijuana (but—spoiler alert—is technically not). The attorney, Benjamin Kull, basically dares both the North Carolina Supreme Court Justices in front of him, along with the copious members of the state’s law enforcement community behind him, to COME AND TAKE IT. Credit where due: This was first noted and reported by WRAL’s Will Doran. The video, which the state supreme court itself posted to YouTube, has surprisingly not spread widely around the internet (with the exception of the North Carolina subreddit, which is where I saw it).

So, um, how can this dude get away with that? Let’s first go through what he said:

In closing, Justice Berger, back to your point, if an officer is walking down the street and smells cannabis, what happens, right?

Boy, that depends. I was in New York City and Boston earlier this year and I smelled pot on practically every street corner. What happened? Nothing! Recreational marijuana been legal in both of those places for years. In North Carolina, though, marijuana is very much illegal. For a long time, if an officer walked past you and smelled weed, you were probably done for.

This is cannabis.

Here is how the supreme court justices reacted to this particular moment.

That’s a lot of resting justice face.

Even so! This attorney is bringing some bold flavor. You can’t just walk into a courtroom and start waving a baggie of cannabis around! Right? Not unless you want to get yourself arrested! Which maybe this guy did!

And so if he's right and if the court of appeals is right, then that means that any of these officers in here right now, can arrest me, can search my briefcase, can seize my property, and can even go into court, swear under oath that they think that this is contraband, and get me convicted.

I think it’s worth saying that at the exact moment when an attorney is waving a a baggie of stinky green around: Nobody moves. That doesn’t mean that those same people aren’t making some fantastic faces.

Now to the big finish:

And so if the people decided that I can legally possess this, well then why should that happen? Thank you.

At this point, depending on how looped in you are, you may be asking yourself: You can legally possess cannabis in North Carolina?

Look, I don’t want to judge. Maybe you are a self-trained scholar of the School of Ganja. Perhaps you think “Half Baked” deserved an Oscar. It’s possible that you, a person of taste and culture, are still listening to Cypress Hill in the year 2025. You may already know what the issue is here. If so, I am sorry for wasting your time.

However! There is a very important and confusing distinction to make here. Cannabis is both legal and illegal in the state of North Carolina. Some cannabis is hemp, which is totally fine, and some is marijuana which, in the eyes of state law, is very much not.

What’s the difference? Even though they come from the same species, marijuana has enough THC in it to get you high. Hemp, on its own, does not.

But in many, many other ways, hemp and marijuana are the same. They come from the same species of plant. They look the same. They smell the same. Unless you’re hittin’ the bong, there’s no actual way to tell the difference.

And you know who really can’t tell the difference? Cops.

I’m not being a jerk here. The state crime lab doesn’t have any equipment that can basically scan down to the molecular level to see if the shredded stuff in your baggie is hemp or if it’s marijuana (Technically, the lab can detect the presence of THC, but they don’t know how much THC). There’s no field test that officers can use to figure out the difference. There no real way to know. You might be puttin’ out strong vibes, along with a strong odor, but you could say “naw man, I’m just takin’ a pull off of this here hemp,” and be telling the truth.

Still, that doesn’t keep police from claiming that they can tell the difference. Here’s the beginning of a story from The Assembly’s Michael Hewlett:

Two trained narcotics investigators with the Beaufort County Sheriff’s Office made a scientifically dubious claim before a judge in October 2022: that they could smell the difference between legal hemp and illegal marijuana.

Officer Jason Cleary told the judge that marijuana has a “very distinct strong smell” and that hemp is “not as pungent and strong as marijuana.” Lt. Russell Davenport testified that he had attended a “marijuana spotter school” and that he had the training and experience to know marijuana when he smelled it.

I’m sorry, give me a minute to get this bit from “Beverly Hills Cop” out of my head.

In this case, the deputies were watching what they thought was a drug house and smelled what they assumed was pot coming from a car out front. When a teenager got in and drove away, the officers pulled him over. The smell was all the probable cause they thought they needed. They found a scale, a handgun, and what they thought was marijuana. But, in a new world where some cannabis is legal and some is not, they couldn’t be 100% sure it was marijuana.

The teenager’s lawyers said that the officer’s search was illegal. The trial court agreed and threw out the charges. The Court of Appeals reversed that. And now the North Carolina Supreme Court has to figure it out.

All of this is happening because ten years ago, North Carolina’s lawmakers started a pilot program to allow people to start growing hemp legally, which some farmers started doing in 2017. In 2018, the federal farm bill removed hemp from the official list of controlled substances, which also made it legal to smoke it here. And in 2022, the state of North Carolina followed suit and permanently made hemp completely legal with almost no regulation. Wondering why you see CBD-infused stuff on sale everywhere? Why there are places passing themselves off as dispensaries? Why there are some drinks that strongly hint that they’ll get you high? It’s because they all have found ways to get enough of the hallucinogenic stuff from hemp, not marijuana. An entire industry is operating on a loophole, sort of like sweepstakes parlors back in their heyday. You can do almost anything with hemp in North Carolina, although that could be coming to an end. The governor’s convening a task force to figure out what’s legal and what’s not. “Our state’s unregulated cannabis market is the wild west and is crying for order,” Gov. Josh Stein said in a statement over the summer.

But! All of this currently puts police in an impossible situation. The State Bureau of Investigation stated in a memo in 2019 that: “The unintended consequence upon passage of this bill is that marijuana will be legalized in NC because law enforcement cannot distinguish between hemp and marijuana and prosecutors could not prove the difference in court.” in North Carolina, it’s legal to smoke hemp, which looks and smells the same as marijuana. But is it legal for police to suspect that you’re committing a crime if they see you doing so?

Back to the state supreme court.

Lawyers for the state, for what it’s worth, say it doesn’t matter whether the smell is marijuana or hemp, because legally, officers don’t have to know for certain whether you’re smokin’ or dealin’ drugs, they just have to reasonably suspect it. For example, if they saw you exchanging money for a baggie of white powder, they could have probable cause to detain you to figure out if what you had was cocaine or, say, baking soda or something. Specifically for pot, the state also cited an appeals court case from 1980, State v. Greenwood, that said that the smell of weed was the only thing you needed to conduct a further search.

Kull, the defense lawyer, stated that Greenwood was antiquated. “When the odor was always the odor of contraband, that odor was like Popeye’s spinach,” he said in court. “It immediately gave them a superpower — superpowers that they did not otherwise have.”

And Kull, the lawyer, said he’s not asking for officers to throw out all context when they decide whether they have probable cause. Hence, if you’re bent over a water bong and shouting “Look at me! I am smoking marijuana!”, that’s probably enough context for a police officer to come over and take a closer look. The context, in court, as Kull was waving a baggie of a cannabis around, was that Kull stated that he was holding hemp, not pot. If he said “this is marijuana! Ha ha, yes!” then it’s possible that one of the glum-faced police officers in the crowd would have actually, you know, moved.

Kull’s point was that odor alone shouldn’t count, because the same odor comes from legal and illegal products, and no nose can tell the difference. “[Lawmakers] have created a legal form of cannabis in North Carolina,” Kull told the justices last week. “The question for this court is whether you are going to impose a tax on that lawful behavior. Not a tax that people will be forced to pay with money, but a tax that people will be forced to pay with their constitutional rights.”

In conclusion, let’s return to the words of Axel Foley. For years in North Carolina, the supercops story was working. Depending on what the state supreme court decides, that may no longer be the case.