State v. Highsmith, 2022-NCCOA-560, ___ N.C. App. ___ (Aug. 16, 2022)

In this Duplin County case, defendant appealed his conviction for felony possession of marijuana. The Court of Appeals found no error and no ineffective assistance of counsel.

Officers of the Duplin County Sheriff’s Office observed a vehicle leaving a residence where they had received several complaints of narcotics being sold. Defendant was in the passenger seat of the vehicle, and the officers recognized him from past encounters and arrests for marijuana possession. The officers also observed a box of ammunition on the back seat and noted that the vehicle was not registered to any of the occupants. After a K-9 unit arrived and signaled the possible presence of illegal substances, the officers searched and found a vacuum-sealed bag of possible marijuana under defendant’s seat. The search also turned up a digital scale and a large amount of cash. Chemical analysis later determined the substance was marijuana.

At trial, defendant made a motion to suppress the bag of marijuana, arguing that the K-9 alert could not support probable cause for the seizure due to the similarity of legal hemp and illegal marijuana. Examining the trial court’s decision to deny, the Court of Appeals noted that the “totality of the circumstances” supported the seizure, because defendant made no statements about the bag containing hemp, and the officers found a digital scale and a large amount of cash in the same search, bolstering the assumption that the bag contained illegal marijuana. Slip Op. at ¶20.

The Court of Appeals also examined defendant’s claims that it was plain error not to instruct the jury that defendant must have actual knowledge the product in the bag was illegal marijuana, and that defendant’s counsel was ineffective by not requesting this jury instruction. The court disagreed on both issues, pointing to the evidence that also supported the denial of the motion to suppress.