State v. Johnson, COA22-363, ___ N.C. App. ___ (Apr. 18, 2023)

In this Vance County case, the state appealed from an order granting defendant’s motion to suppress evidence seized from his person and inside a house. The Court of Appeals reversed and remanded the matter to the trial court. 

While attempting to arrest defendant for an outstanding warrant, officers of the Henderson Police Department noticed the odor of marijuana coming from inside the house where defendant and others were located. All of the individuals were known to be members of a criminal gang. After frisking defendant, an officer noticed baggies of heroin in his open coat pocket. The officers also performed a protective sweep of the residence, observing digital scales and other drug paraphernalia inside. After a search of defendant due to the baggies observed in plain view during the frisk, officers found heroin and marijuana on his person, along with almost $2,000 in fives, tens and twenties. After receiving a search warrant for the house, the officers found heroin, marijuana, drug paraphernalia, and firearms inside. Defendant was indicted on drug possession, criminal enterprise, and possession of firearm by a felon charges. Before trial, the trial court granted defendant’s motion to suppress, finding that there was no probable cause to detain defendant or to enter the residence. 

The Court of Appeals first established the basis for detaining and frisking defendant, explaining that officers had a “reasonable suspicion” for frisking defendant under Terry v. Ohio, 392 U.S. 1 (1968), as they had a valid arrest warrant for defendant for a crime involving a weapon, knew he was a member of a gang, and saw another individual leave the house wearing a ballistic vest. Slip Op. at 14. Applying the “plain view” doctrine as articulated in State v. Tripp, 381 N.C. 617 (2022), and State v. Grice, 367 N.C. 753 (2015), the court found that the search was constitutional and the arresting officer’s eventual seizure of the “plastic baggies he inadvertently and ‘plainly viewed’” was lawful. Slip Op. at 16. 

The court then turned to the trial court’s ruling that the warrantless entry of officers into the house to conduct a protective sweep was unlawful. Noting applicable precedent, the court explained “[t]he Supreme Court of the United States, the Supreme Court of North Carolina, and this Court have all recognized and affirmed a law enforcement officer’s ability to conduct a protective sweep both as an exigent circumstance and for officer’s safety when incident to arrest.” Id. at 16-17. The court found that the officers had both justifications here, as defendant was a member of a gang and known for violence involving weapons, and the officers were unsure whether any other people remained inside the house. 

Finally, the court examined the probable cause supporting the search warrant for the house. Defendant argued that the smell of marijuana could not support probable cause due to it being indistinguishable from industrial hemp. Looking to applicable precedent such as State v. Teague, 2022-NCCOA-600, ¶ 58 (2022), the court noted that the Industrial Hemp Act did not modify the state’s burden of proof, but also noted that like in Teague, the smell of marijuana was not the only basis for probable cause in this case. Slip Op. at 25. Here the court found the drugs in defendant’s pocket and the drug paraphernalia observed during the protective sweep also supported probable cause.