State v. Rowdy, COA24-64, ___ N.C. App. ___ (Oct. 15, 2024)

In this Forsyth County case, defendant appealed his conviction for carrying a concealed weapon, arguing error in denying his motion to suppress a search of his vehicle because the officers lacked probable cause. The Court of Appeals disagreed, finding no error.

In July of 2020, a Forsyth County sheriff’s deputy observed defendant commit a traffic violation by driving into the oncoming traffic lane to go around another car waiting in a left turn lane. The deputy followed defendant and activated his lights and siren, but defendant did not immediately pull over. Defendant eventually stopped in an apartment complex known to be a high crime area, and the deputy initiated a traffic stop. During the stop, the deputy, along with another deputy who arrived to assist, smelled marijuana coming from defendant’s vehicle, and they asked defendant to step out of the vehicle. The deputies began questioning defendant about the smell of marijuana, and defendant “bladed” his body away from the officers and eventually stopped answering questions, at which point the deputies detained defendant. One of the deputies conducted a Terry frisk of defendant and felt an object in his pocket that turned out to be a blunt. After discovering the blunt, the deputies searched the vehicle and found the firearm giving rise to the charge. Before trial, defendant filed a motion to suppress, arguing that due to the legalization of hemp, the deputies did not have probable cause to frisk him or search his vehicle. The trial court denied the motion, and defendant was subsequently convicted.

The Court of Appeals approached the issue by first considering defendant’s challenged findings of fact, which all related to the odor of marijuana and the blunt discovered after the frisk. Defendant argued that there was no evidence the substance was marijuana, but the court noted his argument “[was] misplaced because the legalization of hemp does not eliminate the significance of the officer’s detection of an odor of marijuana for the purposes of determining probable cause.” Slip Op. at 8. The court turned to two recent decisions, State v. Little, COA23-410 (N.C. App. Sept. 3, 2024), and State v. Dobson, COA23-568 (N.C. App. April 16, 2024), to support the conclusion that the odor of marijuana could still support probable cause for a search, especially where the defendant did not claim he possessed legal hemp such as the current case. Additionally, the court noted defendant’s arguments were focused on “policy” and did not question the competency of the evidence before the court. Slip Op. at 10-11.

The court moved next to the Terry frisk of defendant and rejected defendant’s argument that the deputies lacked reasonable suspicion he was armed and dangerous. Here, the court considered the different factors identified by the trial court to find reasonable suspicion: (i) defendant failed to pull over when the deputy first activated his lights and siren and pulled into an apartment complex known as a high crime area; (ii) defendant had previous convictions for narcotics and carrying a concealed gun; and (iii) defendant’s body language when “blading” away from deputies. Under the “totality of the circumstances” standard, the court determined the factors were sufficient to support reasonable suspicion. Id. at 16.

Finally the court rejected defendant’s argument that the deputies lacked probable cause for the search of his vehicle after finding the blunt, explaining the search “was lawful and supported by probable cause without the discovery of the blunt[] [because the] odor of marijuana emanating from the vehicle provided probable cause.” Id. at 17. Similar to the analysis above, the court “follow[ed] well-established precedent” supporting the position that “the odor of marijuana, alone, is sufficient to establish probable cause to search a vehicle.” Id. at 19. Here, the deputies smelling marijuana represented sufficient evidence for probable cause, regardless of whether the substance was actually hemp or marijuana.

Judge Arrowood concurred by separate opinion to urge the Supreme Court of North Carolina to consider and address the issues presented by the legalization of hemp.