Concluding that a dog sniff “was up to snuff,” the Court reversed the Florida Supreme Court and held that the dog sniff in this case provided probable cause to search a vehicle. The Court rejected the holding of the Florida Supreme Court which would have required the prosecution to present, in every case, an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s reliability. The Court found this “demand inconsistent with the ‘flexible, common-sense standard’ of probable cause. It instructed:

In short, a probable-cause hearing focusing on a dog’s alert should proceed much like any other. The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. In all events, the court should not prescribe, as the Florida Supreme Court did, an inflexible set of evidentiary requirements. The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.  A sniff is up to snuff when it meets that test.

Applying that test to the drug dog’s sniff in the case at hand, the Court found it satisfied.

The court held that a police dog’s instinctive action, unguided and undirected by the police, that brings evidence not otherwise in plain view into plain view is not a search within the meaning of the Fourth Amendment. Responding to a burglar alarm, officers arrived at the defendant’s home with a police dog, Jack. The officers deployed Jack to search the premises for intruders. Jack went from room to room until he reached a side bedroom where he remained. When an officer entered to investigate, Jack was sitting on the bedroom floor staring at a dresser drawer, alerting the officer to the presence of drugs. The officer opened the drawer and found a brick of marijuana. Leaving the drugs there, the officer and Jack continued the protective sweep. Jack stopped in front of a closet and began barking at the closet door, alerting the officer to the presence of a human suspect. Unlike the passive sit and stare alert that Jack used to signal for the presence of narcotics, Jack was trained to bark to signal the presence of human suspects. Officers opened the closet and found two large black trash bags on the closet floor. When Jack nuzzled a bag, marijuana was visible. The officers secured the premises and obtained a search warrant. At issue on appeal was whether Jack’s nuzzling of the bags in the closet violated the Fourth Amendment. The court of appeals determined that Jack’s nuzzling of the bags was an action unrelated to the objectives of the authorized intrusion that created a new invasion of the defendant’s privacy unjustified by the exigent circumstance that validated the entry. That court viewed Jack as an instrumentality of the police and concluded that “his actions, regardless of whether they are instinctive or not, are no different than those undertaken by an officer.” The Supreme Court disagreed, concluding that “Jack’s actions are different from the actions of an officer, particularly if the dog’s actions were instinctive, undirected, and unguided by the police.” It held:

If a police dog is acting without assistance, facilitation, or other intentional action by its handler (. . . acting “instinctively”), it cannot be said that a State or governmental actor intends to do anything. In such a case, the dog is simply being a dog. If, however, police misconduct is present, or if the dog is acting at the direction or guidance of its handler, then it can be readily inferred from the dog’s action that there is an intent to find something or to obtain information. In short, we hold that a police dog’s instinctive action, unguided and undirected by the police, that brings evidence not otherwise in plain view into plain view is not a search within the meaning of the Fourth Amendment or Article I, Section 20 of the North Carolina Constitution. Therefore, the decision of the Court of Appeals that Jack was an instrumentality of the police, regardless of whether his actions were instinctive, is reversed. (citation omitted)

Ultimately, the court remanded for the trial court to decide whether Jack’s nuzzling in this case was in fact instinctive, undirected, and unguided by the officers.

In this Union County case, defendant appealed his convictions for trafficking in heroin by possession and by transportation, arguing error by (1) denying his motion to suppress based on insufficient probable cause, and (2) sentencing him for both convictions as possession is a lesser-included offense of trafficking. The Court of Appeals found no error. 

In November of 2020, a lieutenant with the Union County Sheriff’s Office received a call from a confidential informant regarding a man driving a Honda Accord who had recently left a known heroin trafficker’s house. Another officer received the report and initiated a traffic stop of defendant after observing him run a red light. A canine officer responded to the stop and conducted a search around the vehicle; the dog alerted at the passenger side door. A search of the vehicle found a plastic bag with brownish residue. Defendant moved to suppress the results of this search before trial, but the trial court denied the motion, finding the dog’s alert and the confidential informant’s tip supported probable cause. 

Taking up (1), the Court of Appeals outlined defendant’s arguments challenging both the reliability of the dog’s alert and the reliability of the confidential informant. Concerning the dog’s alert, defendant argued due to the legalization of hemp, the alert did not necessarily indicate illegal drugs, and thus could not represent probable cause. The court rejected this argument, explaining that caselaw supported a drug dog’s alert as probable cause to search the area where the dog alerted, and “[t]he legalization of hemp does not alter this well-established general principle.” Slip Op. at 7. The court noted that this argument also did not fit the facts of the case, as no officer noticed the smell of marijuana, and the confidential informant referenced heroin, which was also the substance found in the car. Because the dog’s alert alone formed sufficient probable cause, the court did not reach the confidential information argument. 

Arriving at (2), the court explained that “[d]efendant was sentenced for trafficking in heroin by transportation and possession, not trafficking and possession.” Id. at 11. The court pointed to State v. Perry, 316 N.C. 87 (1986), for the principle that a defendant could be convicted for trafficking in heroin by possession and by transporting “even when the contraband material in each separate offense is the same.” Id., quoting Perry at 103-04. Based on this precedent, the court rejected defendant’s arguments, and also rejected his “challenge” to create “a hypothetical where a defendant transports drugs without possessing drugs.” Id. 

In this Henderson County case, defendant appealed his convictions for trafficking methamphetamine, possession with intent to manufacture, sell and/or deliver, and maintaining a vehicle used for keeping and selling a controlled substance, arguing error in the denial of his motion to suppress the results obtained from an unconstitutionally extended traffic stop. The Court of Appeals found no error. 

In February of 2019, two officers from the Henderson County Sheriff’s Office performing drug interdiction pulled over defendant for weaving and following another vehicle too closely. The officers had received a tip from the narcotics unit to be on the lookout for a silver minivan similar to the vehicle defendant was driving. The officers decided to issue a warning citation to defendant for traveling left of the centerline and following too closely. One officer asked defendant to step out of the vehicle, frisked him for weapons, then explained the warning to him outside the vehicle. While the officer was explaining the warning citation, a K-9 unit performed a free air sniff around the vehicle and alerted, leading to a search that discovered methamphetamine. 

Rejecting defendant’s argument that the officers deviated from the mission of the stop and unconstitutionally extended it, the Court of Appeals turned to precedent supporting an officer’s ability to perform ordinary inquiries related to a stop as long as they do not measurably extend the duration. The court also noted that a K-9 free air sniff could be conducted without reasonable suspicion if it did not prolong the stop. Here, the court explained that the officers were permitted to order defendant out of his car and pat him down to ensure their safety during the stop, and these steps did not measurably extend the stop’s duration or convert it into an unlawful seizure. Likewise, “[a]lthough the K-9 free air sniff was unrelated to the reasons for the traffic stop, it did not prolong the traffic stop and was therefore permissible.” Slip Op. at 16. Finding no error, the court affirmed the denial of defendant’s motion to suppress. 

In this Watauga County case, defendant appealed his conviction for possession of methamphetamine, arguing error in the denial of his motion to suppress the results of a search of his vehicle. The Court of Appeals affirmed the trial court’s denial.

In October of 2020, a Watauga County Sheriff’s Deputy saw defendant driving a black truck through an intersection in Boone. The deputy was familiar with defendant and knew defendant had outstanding warrants for possession of methamphetamine, so he initiated a traffic stop. A canine unit was called to the scene and conducted a walk-around of the vehicle; after the dog alerted, the deputies searched the vehicle and found a bag with methamphetamine and a substance that appeared to be marijuana. However, after defendant was arrested and indicted for possession of these substances, it was determined that the marijuana was actually hemp, and charges for possession of marijuana were dismissed.

The court summarized defendant’s issue on appeal as whether officers “need probable cause to use a drug-detection dog to sniff a vehicle for narcotics when the dog is unable to distinguish between contraband and noncontraband.” Slip Op. at 10. Defendant argued Fourth Amendment precedent holding the use of a drug-sniffing dog does not constitute a search must be reexamined now that a dog might alert to hemp, as the person may have a legitimate privacy interest in noncontraband. The court found that the privacy interest did not apply as the “drug-sniffing dog was trained and certified to alert on methamphetamine, and [d]efendant did not create a ‘legitimate privacy interest’ as to the methamphetamine simply by storing it in the same bag with the hemp,” and concluded “the Fourth Amendment does not protect against the discovery of contraband, detectable by the drug-sniffing dog, because [d]efendant decided to package noncontraband beside it.” Id. at 18. Applying the motor vehicle exception, the court found probable cause to search the vehicle based on the positive alert by the dog, and the deputies’ knowledge of defendant’s outstanding warrants and previous seizures from defendant of methamphetamine.  

In this Wake County case, a drug investigator was working at a local FedEx facility and noticed a package from California with the seams taped shut and with an apparently fake phone number for the recipient. The officer removed the package from the conveyor belt and searched law enforcement databases for information on the sender and the recipient. He discovered that the telephone number for the sender listed on the package was incorrect, that the telephone number for the recipient was fictitious, and that the package had been mailed from a location other than the listed shipping address. The package was placed alongside several other similar packages and was examined by a drug dog already present in the facility. Following an alert by the canine, officer obtained a search warrant for the package. Inside, officers discovered packages of around 15 pounds of suspected marijuana, along with a GPS tracker. Officers visited the address of the recipient, where they noticed the defendant in the driveway. They also noted the presence of a storage unit facility nearby and later learned the defendant rented a unit there. A man (apparently the sender) called the FedEx facility to inquire about the status of the package. An officer called him back, first verifying the intended address and recipient of the package and then identifying himself as law enforcement. The man on the phone cursed and ended the call. The next day, officers visited the storage facility near the defendant’s home with a canine unit, which alerted to a certain unit. While officers were obtaining a search warrant for the unit, the defendant arrived on scene holding a bag. Officers saw what they believed to be marijuana extract or “wax” inside the bag and placed the defendant under arrest. Once the search warrant for the storage unit was approved, officers discovered more apparent marijuana and marijuana extract inside. Search warrants for the defendant’s house were then obtained, leading to the discovery of marijuana paraphernalia and a substance used to produce marijuana extract. 

The defendant was charged with conspiracy to traffic marijuana, possession with intent to sell/deliver marijuana and possession with intent to sell/deliver THC (among other related offenses). The defendant moved to suppress, arguing that the seizure of the package at the FedEx facility was unconstitutional. The trial court denied the motion, and the defendant was convicted of trafficking and other offenses at trial. On appeal, the defendant challenged the denial of his suppression motion, the denial of his motion to dismiss for insufficient evidence, the admission of lay opinions identifying the substances in the case as marijuana, marijuana wax, and THC, and the admission of the phone call between the officer and the man who called the FedEx facility inquiring about the package. The Court of Appeals affirmed.

(1) The court rejected the argument that the defendant’s Fourth Amendment rights were violated by the seizure of the package and canine sniff at the FedEx facility. “[W]e do not accept Defendant’s initial contention that the mere removal of the target package from the conveyor belt for a drug dog sniff was a ‘seizure’ implicating his Fourth Amendment rights. Neither was the drug dog sniff a ‘search. . .’” Teague Slip op. at 13. While both the sender and recipient of a mailed package have a reasonable expectation of privacy in the contents of a package, the temporary detention and investigation of the package in a manner that does not significantly delay its delivery does not amount to a Fourth Amendment seizure. Officers here had reasonable suspicion to justify a brief investigation and dog sniff of the package. From there, officers properly obtained search warrants of the package, which led to additional search warrants supported by probable cause. Thus, the acts of removing the package for investigation and subjecting it to a canine sniff did not implicate the defendant’s Fourth Amendment rights and the motion to suppress was properly denied. 

(2) Assuming arguendo that the seizure and canine sniff of the package did implicate the defendant’s Fourth Amendment rights, he failed to preserve those arguments for appellate review. While the defendant filed a pretrial motion to suppress and fully litigated those issues (including objecting to the canine alert evidence at trial), he failed to object to testimony at trial about the removal of the package from the conveyor belt for additional investigation. Appellate review of that issue was therefore waived. The dog sniff on its own did not amount to a search, given it took place at the FedEx facility while the item was “still in the mail stream” and was completed within ten minutes. “…Defendant’s renewed objection at trial to the introduction of . . . the dog sniff was insufficient to resurrect any prior unpreserved Fourth Amendment argument for appellate review.” Id. at 25. The trial court also did not plainly err by denying the suppression. Because the defendant’s Fourth Amendment rights were not implicated, no error occurred, much less any plain error in the trial court’s denial of the suppression motion. 

Regarding the defendant’s other challenges, the court noted the continued ambiguity surrounding the impact of hemp legalization on marijuana prosecutions, citing State v. Parker, 277 N.C. App. 531 (2021). The court opined that the now-defunct Industrial Hemp Act did not impact the State’s burden of proof in criminal proceedings “to the degree the Defendant contends,” while also acknowledging that “our appellate courts have yet to fully address the effect of industrial hemp’s legalization on . . . the various stages of a criminal investigation and prosecution for acts involving marijuana.” Teague Slip op. at 28 (citation omitted). 

(3) The defendant argued that the indictment charging him with possession with intent to sell/deliver THC was fatally defective for failure to state a crime because the indictment failed to specify that the THC possessed by the defendant contained a delta-9 THC concentration of more than 0.3%. The court rejected this argument, finding that the concentration of delta-9 THC is not an element of the crime and that the then-applicable Industrial Hemp Act did not remove THC from the list of prohibited controlled substances under Chapter 90 of the North Carolina General Statues. Moreover, the defendant has the burden under G.S. 90-113.1 to prove lawful possession of a controlled substance, which is an exception to the prohibitions on controlled substances and (again) not an element of the offense. (The prohibition on possession of THC in G.S. 90-94 has since been amended to exclude all THC products containing no more than 0.3% delta-9 THC, which expressly removes delta-9 THC within the legal limit and all other hemp-derived THCs not exceeding the delta-9 THC limit from the list of prohibited controlled substances).

(4) The trial correctly denied the defendant’s motion to dismiss the charge of possession with intent to sell/deliver THC for insufficient evidence. The defendant pointed to the lack of any chemical analysis for the brown marijuana “wax” and argued that the State failed to present proof that the substance was an illegal controlled substance given the existence of legal hemp. The court found that the brown material did not qualify as industrial hemp under the then-existing definition but met the definition of THC in place at the time. “The brown material was neither a part nor a variety of the plant Cannabis sativa.” Teague Slip op. at 34 (emphasis in original). Moreover, even if the material did qualify as a part of the plant, “Defendant makes no argument that he was a ‘grower licensed by the Commission’, or that the brown material was cultivated by such a licensed grower, as the statutory definition of ‘industrial hemp’ requires.” Id. at 35. In the light most favorable to the State, there was therefore sufficient evidence that the brown material was THC, and the motion was properly denied. (Industrial hemp is no longer defined under state law and has been replaced by new state definitions for marijuana, hemp and hemp products, as discussed here. Under the new definitions, hemp is defined to include all extracts and derivatives of hemp, and hemp products are defined as anything made from hemp. There is no longer any requirement that hemp be grown by a licensed grower.)

(5) The defendant argued that the legalization of hemp in the state undercut the justifications in the decisions allowing the lay identification of marijuana without the need for a chemical analysis. See, e.g., State v. Mitchell, 224 N.C. App. 171, 179 (2013). He complained on appeal that the admission of lay opinion testimony identifying “marijuana wax,” “THC,” and marijuana as such without a valid chemical analysis violated N.C. Evid R. 702 and was reversible error. The Court of Appeals disagreed. Assuming without deciding that the trial court erred in admitting this testimony, the defendant could not show prejudice. The flower marijuana in the package was properly lab-tested and found to contain illegal levels of delta-9 THC. While the brown wax material was tested only for the presence of delta-9 THC and not for specific levels of THC, the material again did not qualify as industrial hemp under the then-existing definition. While other flower material found in the storage shed was likewise only tested for the presence of THC (and not for quantified THC levels), there was overwhelming evidence of the defendant’s guilt. Given the marijuana that was properly tested, along with the discovery of other drugs and drug paraphernalia at the defendant’s house, storage unit, and in the bag that the defendant was carrying when he encountered officers at the storage unit (among other evidence), there was no reasonable likelihood of a different result at trial had this identification testimony been excluded. 

(6) There was also sufficient evidence supporting the defendant’s conviction for conspiring to traffic marijuana by transportation, and the trial court did not err in admitting a recording of the phone call between the apparent sender of the package and the law enforcement officer. The shipping label accurately named the defendant and his address, and the sender acknowledged that information on the call with the officer. The sender was also upset upon learning that the package had been intercepted by law enforcement. Additionally, the drugs in the package were worth more than $150,00.00 and included a GPS tracking device. This was sufficient to show the defendant and co-conspirator’s “mutual concern for and interest in” the package, thus providing sufficient evidence of the conspiracy. Id. at 44. The phone call between the sender of the package and law enforcement was properly admitted under the hearsay exception for statements of co-conspirators under N.C. Evid. R. 801(d)(E). The court rejected the defendant’s argument that the statement at issue here did not qualify under that exception because it was not a statement made between the conspirators. The court observed:

[W]hen the State has introduced prima facie evidence of a conspiracy, the acts and declarations of each party to it in furtherance of its objectives are admissible against the other members regardless of their presence or absence at the time the acts and declarations were done or uttered. Teague Slip op. at 46 (citation omitted) (emphasis in original). 

There was therefore sufficient evidence of the conspiracy conviction and no error in admission of the phone call between law enforcement and the co-conspirator. 

In this case from Burke County, an officer observed the defendant driving ten miles over the speed limit and believed that the vehicle’s window tint was illegal. When the officer approached, he smelled a slight odor of marijuana and a strong odor of cologne. He also observed that the car windows were not tinted but rather had “shades” covering them. While running license and background checks of the defendant, the officer called for a canine unit and a backup officer. When he returned to the defendant’s vehicle, the odor of marijuana was stronger. The defendant denied having drugs in the car and gave no indications of impairment during field sobriety testing. While the officer was writing a warning ticket, a canine unit arrived. The dog alerted on the car, and the defendant ultimately admitted that a gun was inside. A search revealed the gun, cash, digital scales, cocaine, and synthetic opioids. The defendant moved to suppress. He also sought to admit evidence of a relationship between the backup officer on scene and a woman whose house the defendant had been at immediately before the stop and challenged the reliability of the canine sniff. The trial court denied the motion to suppress, allowed a limited offer of proof regarding the relationship between the woman and the officer (but excluded the evidence as irrelevant), and found the canine was reliable. The defendant pled guilty to trafficking opium and appealed.

(1) The stop of the defendant’s car was supported by reasonable suspicion based on the officer’s observation of speeding (which was confirmed by radar), as well as the suspected window tint violation. The officer developed additional reasonable suspicion of a drug offense based on the odor of marijuana emanating from the defendant’s car. The canine unit arrived on scene 12 minutes into the traffic stop and conducted its sniff of the defendant’s car within one minute while the stopping officer was writing a warning ticket. The officer therefore acted within the mission of the stop throughout the encounter and the stop was not improperly extended. The search of the defendant’s car was also supported by probable cause based on the odor of marijuana and the positive canine alert.

(2) The defendant complained that his offer of proof regarding the relationship between one officer on the scene and a woman whose house the defendant had traveled from prior to the stop was improperly limited. The Court of Appeals noted that “a trial court may limit an offer of proof by allowing counsel to articulate what a defendant’s showing would have been by identifying witnesses and presenting a detailed forecast of evidence for the record.” Walton Slip op. at 11. Here, the fact of the relationship was established before the trial court and that was a sufficient offer of proof on the issue. The court also found that because this officer was not the stopping officer and had limited involvement in the case, the trial court did not commit prejudicial error in limiting or excluding this evidence.

(3) The defendant also argued that the trial court incorrectly found the canine was properly trained and reliable. Under Florida v. Harris, 568 U.S. 237 (2013), a certified or well-trained canine’s alert can supply probable cause to search under the totality of circumstances. A defendant is permitted to demonstrate that the animal was not properly trained or reliable in arguing against probable cause based on the alert. The defendant pointed to the fact that one of the dog’s certifications was expired at the time of the sniff. The court rejected this a determinative factor, finding the dog had been repeatedly certified by two different organizations and had at least one unexpired certification at the time. This was sufficient evidence of the dog’s reliability, absent any showing by the defendant that its training or performance was deficient. The fact that the officer handling the canine had gaps in his training inconsistent with departmental policies was similarly not determinative. While the officer’s training is a relevant consideration in the analysis, this alone was insufficient to overcome the showing that the dog was properly trained and reliable.

The case was therefore affirmed in all respects.