On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 805 S.E.2d 348 (2017), the court reversed, holding that an officer’s decision to briefly detain the defendant for questioning was supported by reasonable suspicion of criminal activity. While on patrol at 4 AM, Lieutenant Marotz noticed a car parked in a turn lane of the street, with its headlights on but no turn signal blinking. Marotz saw two men inside the vehicle, one in the driver’s seat and the other—later identified as the defendant—in the seat directly behind the driver. The windows were down despite rain and low temperatures. As Marotz pulled alongside of the vehicle, he saw the defendant pull down a hood or toboggan style mask with holes in the eyes, but then push the item back up when he saw the officer. Martoz asked the two whether everything was okay and they responded that it was. The driver said that the man in the back was his brother and they had been arguing. The driver said the argument was over and everything was okay. Sensing that something was not right, the officer again asked if they were okay, and they nodded that they were. Then the driver moved his hand near his neck, “scratching or doing something with his hand,” but Marotz was not sure how to interpret the gesture. Still feeling that something was amiss, Marotz drove to a nearby gas station to observe the situation. After the car remained immobile in the turn lane for another half minute, Marotz got out of his vehicle and started on foot towards the car. The defendant stepped out of the vehicle and the driver began to edge the car forward. Marotz asked the driver what he was doing and the driver said he was late and had to get to work. The officer again asked whether everything was okay and the men said that everything was fine. However, although the driver responded “yes” to the officer’s question, he shook his head “no.” This prompted the officer to further question the defendant. The driver insisted he just had to get to work and the officer told him to go. After the driver left, the defendant asked the officer if he could walk to a nearby store. The officer responded, “[H]ang tight for me just a second . . . you don’t have any weapons on you do you?” The defendant said he had a knife but a frisk by a backup officer did not reveal a weapon. After additional questioning the officers learned the defendant’s identity and told him he was free to go. Later that day the driver reported to the police that the defendant was not his brother and had been robbing him when Marotz pulled up. The defendant held a knife to the driver’s throat and demanded money. Officers later found a steak knife in the back seat of the vehicle. The defendant was charged with armed robbery and he moved to suppress the evidence obtained as a result of his seizure by Marotz. The parties agreed that the defendant was seized when Marotz told him to “hang tight.” The court found that the circumstances established a reasonable, articulable suspicion that criminal activity was afoot. Although the facts might not establish reasonable suspicion when viewed in isolation, when considered in their totality they could lead a reasonable officer to suspect that he had just happened upon a robbery in progress. The court also found that the Court of Appeals placed undue weight on Marotz’s subjective interpretation of the facts (the officer’s testimony suggested that he did not believe he had reasonable suspicion of criminal activity), rather than focusing on how an objective, reasonable officer would have viewed them. The court noted that an action is reasonable under the fourth amendment regardless of the officer’s state of mind, if the circumstances viewed objectively justify the action. Here they do.

In this New Hanover County case, defendant appealed the denial of his motion to suppress the results of a search of his vehicle, arguing error in finding reasonable suspicion for the traffic stop leading to the search. The Court of Appeals found no error.  

In March of 2019, a Wilmington police officer was following defendant on a city street when he smelled the strong odor of marijuana coming from defendant’s vehicle. The officer eventually pulled defendant over, based solely on the smell coming from the vehicle. During the stop, the officer continued to smell marijuana, and asked defendant to step out of the vehicle; when defendant stepped out, the officer saw white powder and an open alcohol container. A search of the vehicle found heroin, MDNA, cocaine, and marijuana. At trial for possession and trafficking charges, defendant moved to suppress the results of the search, arguing he was not smoking marijuana while driving, and all the windows of his vehicle were closed, suggesting the officer could not have smelled marijuana coming from his vehicle and had no reasonable suspicion to initiate a stop. The trial court denied the motion, defendant pleaded guilty and appealed. 

Taking up defendant’s arguments, the Court of Appeals first noted that normally the appeals court defers to the trial court’s determination of witness credibility when looking at testimony establishing reasonable suspicion. However, when the physical circumstances are “inherently incredible” the deference to a trial court’s determination will not apply. Slip Op. at 8, quoting State v. Miller, 270 N.C. 726, 731 (1967). Relevant to the current matter, applicable precedent held that “an officer’s smelling of unburned marijuana can provide probable cause to conduct a warrantless search and seizure, and that an officer’s smelling of such is not inherently incredible.” Id. Because the circumstances here were not “inherently incredible,” the court deferred to the trial court’s finding that the officer’s testimony was credible, which in turn supported the finding that the officer had reasonable suspicion to initiate the traffic stop. 

In this driving while impaired case, the officer observed the defendant sitting on a porch and drinking a tall beer at approximately 9:00pm. The defendant was known to the officer as someone he had previously stopped for driving while license revoked and an open container offense. Around 11:00pm, the officer encountered the defendant at a gas station, where she paid for another beer and returned to her car. The officer did not observe any signs of impairment while observing her at the store and did not speak to her. When the defendant drove away from the store, the officer followed her and saw her driving “normally”—she did not speed or drive too slow, she did not weave or swerve, she did not drink the beer, and otherwise conformed to all rules of the road. After two or three blocks, the officer stopped the car. He testified the stop was based on having seen her drinking beer earlier in the evening, then purchase more beer at the store later and drive away. The trial court denied the motion to suppress and the defendant was convicted at trial. The court of appeals unanimously reversed. The court noted that a traffic violation is not always necessary for reasonable suspicion to stop (collecting sample cases), but observed that “when the basis for an officer’s suspicion connects only tenuously with the criminal behavior suspected, if at all, courts have not found the requisite reasonable suspicion.” Here, the officer had no information that the defendant was impaired and did not observe any traffic violations. The court also rejected the State’s argument that the defendant’s past criminal history for driving while license revoked and open container supplemented the officer’s suspicions: “Prior charges alone, however, do not provide the requisite reasonable suspicion and these particular priors are too attenuated from the facts of the current controversy to aid the State’s argument.” Despite the lack of objection at trial, the court found the trial court’s finding of reasonable suspicion to be an error which had a probable impact on the jury’s verdict, reversing the denial of the motion and vacating the conviction under plain error review.