State v. Parker, 2022-NCCOA-655, ___ N.C. App. ___ (Oct. 4, 2022)

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.