Don’t want to further derail the FQ topic which is supposed to be about police interrogations rather than what is or isn’t legal under federal law. So I’ll post here.
Federal law?
Did you miss the memo? There is a widely reported loophole in the federal Agricultural Improvement Act of 2018 which decriminalizes cannabis with low concentrations of Delta-9 THC. Normally such strains do not produce a high. The loophole is that cannabis plants also produce Delta-8 THC in very tiny amounts, so they will extract this Delta-8 THC from legal plants. This extract is used in edibles and tinctures, but it can also be rubbed all over the “flower” of a Delta-9 THC deficient plant. The resultant product is federally legal cannabinoid that looks like weed, smells like weed, and tastes like weed. You can smoke it to get high, with the same paraphernalia such as rolling paper, though I’m told it’s more of a body high than head high.
On the state level, in 2019 West Virginia classified cannabis products with less than 0.3% Delta-9 THC concentrations as hemp, a non-controlled substance, rather than marijuana. This is codified under chapter 19, article 12E.
And indeed you can buy this stuff in West Virignia. Here’s a shop selling it in Morgantown. I don’t know about West Virginia, but in Florida this stuff is as ubiquitous as tobacco, with cannabinoid products in every gas station.
I am actually surprised at your posts, since you are a defense lawyer I would expect you to have argued that because legal hemp is indistinguishable from marijuana, the smell test is no longer probable cause for illegal possession.
On the other hand I agree with UV about smell being probable cause for a vehicular search for drug paraphernalia on suspicion of DUID. This seems to follow from Arizona v Grant, 556 U.S. 332 (2009), where the court ruled that police may conduct warrantless vehicular searches incident to a passenger’s arrest if they reasonably suspect the vehicle contains evidence of the offense. I think it’s reasonable to suspect a person who is driving erratically, whose car emits the odor of burning cannabis, of driving under the influence. Doesn’t matter whether it’s hemp or marijuana, DUID is DUID. And I think it’s reasonable to seize drug paraphernalia from the vehicle as evidence in support of that charge - for example ashes on the center console or carpeting, blunts or bongs that may have been stuffed in the glovebox or center compartment.
~Max