In this Hoke County case, defendant appealed the denial of his motion to suppress the evidence seized after a traffic stop, arguing the odor and appearance of marijuana did not support probable cause to search his vehicle. The Court of Appeals disagreed, affirming the denial.

In May of 2020, a Hoke County deputy sheriff stopped defendant after seeing defendant’s truck cross the centerline of the road at least three times. When the deputy approached defendant’s window, he smelled marijuana and saw marijuana residue on the passenger side floorboard. When asked about the marijuana, defendant said it was from his cousin, but did not claim that it was legal hemp. Officers from the sheriff’s office searched the vehicle and found a firearm, bullets, sandwich bags, and $10,000 in cash. Defendant was subsequently indicted for possession of a stolen firearm, possession of a firearm by a felon, and carrying a concealed firearm. Defendant filed a motion to suppress, arguing “the odor or appearance of marijuana, standing alone, after the legalization of hemp was insufficient to establish probable cause.” Slip Op. at 3. The trial court denied the motion and defendant pleaded guilty to the charges, reserving his right to appeal the denial. 

The Court of Appeals first noted defendant’s argument leaned heavily on the State Bureau of Investigation (SBI) memo considering the Industrial Hemp Act and the “impossibility” of distinguishing legal hemp from illegal marijuana by sight or smell. Id. at 5. The court then gave a brief overview of the Industrial Hemp Act and the SBI memo. Defendant argued that the Court of Appeals considered the SBI memo in State v. Parker, 277 N.C. App. 531 (2021), and State v. Teague, 286 N.C. App. 160 (2022), but the court noted that “neither Parker nor Teague accorded the Memo the status of binding law.” Slip Op. at 11. 

To establish applicable probable cause requirements for a search of defendant’s vehicle, the court looked to the Fourth Amendment and the plain view doctrine, noting the requirement that it be “immediately apparent” a substance was contraband to justify a search. Id. at 13. Applicable precedent provides that the plain view doctrine also includes the plain smell of marijuana, and the N.C. Supreme Court held (prior to the Industrial Hemp Act) that “the smell of marijuana gives officers the probable cause to search an automobile.” Id. at 14. The court took pains to explain the requirement that contraband be “immediately apparent” under the plain view doctrine, looking to Texas v. Brown, 460 U.S. 730 (1983), for the concept that it was “no different than in other cases dealing with probable cause,” despite the phrase’s implication of a higher degree of certainty. Slip Op. at 15. 

Having established the applicable law, the court moved to the facts of defendant’s appeal, noting again that defendant did not claim the substance in his vehicle was legal hemp or that he was transporting or producing hemp. The court likened the situation to prescription medication, where “[i]t is legal for a person to possess certain controlled substances with a valid prescription . . . [but a] law enforcement officer may have probable cause to seize a bottle of pills in plain view if he reasonably believes the pills to be contraband or illegally possessed.” Id. at 19. Emphasizing that the issue at hand was not proving beyond a reasonable doubt that the substance was illegal marijuana, the court focused instead on “whether the officer, based upon his training and experience, had reasonable basis to believe there was a ‘practical, nontechnical’ probability that incriminating evidence would be found in the vehicle.” Id. at 21 (cleaned up). The court then summarized its reasoning:

Even if industrial hemp and marijuana look and smell the same, the change in the legal status of industrial hemp does not substantially change the law on the plain view or plain smell doctrine as to marijuana. The issue is not whether the substance was marijuana or even whether the officer had a high degree of certainty that it was marijuana, but “whether the discovery under the circumstances would warrant a man of reasonable caution in believing that an offense has been committed or is in the process of being committed, and that the object is incriminating to the accused.” In addition, even if the substance was hemp, the officer could still have probable cause based upon a reasonable belief that the hemp was illegally produced or possessed by Defendant without a license . . . . Either way, the odor and sight of what the officers reasonably believed to be marijuana gave them probable cause for the search. Probable cause did not require their belief that the substance was illegal marijuana be “correct or more likely true than false. A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required.”

Id. at 21-22 (cleaned up). This conclusion led the court to affirm the denial of defendant’s motion to suppress. 

In this Guilford County case, defendant appealed his attempted heroin trafficking and possession of a firearm convictions pursuant to a plea agreement that preserved his right to appeal the denial of his motion to suppress. The Court of Appeals affirmed the denial of defendant’s motion. 

The Guilford County Sheriff’s Office conducted a narcotics investigation in May of 2019. As part of the investigation, a confidential informant made several purchases of heroin from a person who was associated with defendant. During a purchase set up by the confidential informant, the seller was observed getting into a black SUV, a vehicle later spotted by an officer at a fuel pump near the arranged buy. After spotting the black SUV officers detained defendant, who was operating the SUV, and searched the vehicle, finding heroin and a loaded firearm. At trial, defendant moved to suppress the warrantless search and seizure, which the trial court denied after finding probable cause for the search. 

Reviewing defendant’s appeal, the Court of Appeals first examined the challenged findings of fact related to the officers’ testimony. Defendant argued that inconsistences between the testimony of the two officers meant that both could not be considered credible, and certain other findings of fact were inconsistent with the evidence presented. The court explained that slight inconsistencies between the testimony of two witnesses did not prevent both from being credible, and the trial court is tasked with evaluating the evidence and resolving inconsistencies. Because competent evidence supported the findings of fact even with the slight inconsistences, the court rejected defendant’s challenges. 

The court then reviewed the probable cause for a search of defendant’s SUV and the seizure of heroin and a firearm found inside the vehicle. The court explained that the “automobile exception” to the Fourth Amendment requires that the “vehicle be in a public vehicular area and the police have probable cause.” Slip Op. at 16. The first issue was whether defendant’s SUV was in a “public vehicular area” when searched; defendant argued that the area next to a fuel pump did not fall under the definition provided by G.S. § 20-4.01(32). The court explained that a “service station” is gas station for purposes of the statute, and although the fuel pump area may not be a “driveway, road, alley, or parking lot” as listed by the statute, this list is intended to be illustrative and not limiting. Slip Op. at 19. After examining applicable precedent, the court held that “the driving or parking area adjacent to a fuel pump at a service station is a ‘public vehicular area’” for purposes of G.S. § 20-4.01(32). 

After determining that defendant’s SUV was in a public vehicular area, the court turned to the probable cause for searching the vehicle. Defendant argued that the plain view and plain smell doctrines could not support the search of the vehicle. Regarding the plain view doctrine, the court pointed out that the vehicle was in a public vehicular area and near the location of the drug buy the officers were observing. For the plain smell doctrine, the court noted that there was no applicable precedent regarding the smell of heroin supporting a search, but ample precedent used the smell of other narcotics, such as marijuana and cocaine, to support probable cause for a search. The court saw “no reason to treat the plain smell of heroin any differently than the plain smell of marijuana or cocaine” for purposes of the plain smell doctrine, and affirmed the trial court’s determination of probable cause for the search. Slip Op. at 29.