State v. Tabb, 2022-NCCOA-717, ___ N.C. App. ___ (Nov. 1, 2022)

In this Forsyth County case, the Court of Appeals considered for a second time defendant’s appeal of his guilty pleas to possession of cocaine, marijuana, and marijuana paraphernalia based upon the trial court’s denial of his motion to suppress. The Court of Appeals affirmed the denial of defendant’s motion to suppress. 

This matter first came before the court in State v. Tabb, 2021-NCCOA-34, 276 N.C. App. 52 (2021) (unpublished), and the facts taken from that decision are presented in pages 2-4 of the slip opinion. The court remanded to the trial court with instructions to consider the sequence of events leading to defendant’s arrest and determine if a show of force and seizure of the driver occurred, where one arresting officer approached the driver’s side of the vehicle while two other officers approached the passenger’s side (where defendant was seated) and noticed marijuana and cash on defendant’s lap. Slip Op. at 4-5. The trial court concluded that the actions of the officers occurred almost simultaneously, and that neither defendant nor the driver would have believed they were seized until defendant was removed from the vehicle. As a result, the trial court concluded the search of defendant was constitutional and again denied his motion to suppress. 

Considering the current matter, the Court of Appeals first noted that defendant failed to raise the argument that the search violated Article 1, § 20 of the North Carolina Constitution in front of the trial court, dismissing this portion of his argument. The court then considered the argument that the officer who approached the driver’s side of the vehicle effected a seizure without proper suspicion, violating the Fourth Amendment. Exploring the applicable precedent, the court explained “[p]olice officers on foot may approach a stationary vehicle with its engine running and its lights turned on in a known area for crimes after midnight to determine if the occupants ‘may need help or mischief might be afoot’ or to seek the identity of the occupants therein or observe any items in plain view without violating our Fourth Amendment jurisprudence.” Id. at 10, citing Brendlin v. California, 551 U.S. 249 (2007), Terry v. Ohio, 392 U.S. 1 (1968), and State v. Turnage, 259 N.C. App. 719 (2018). The court then explained that, even if the driver was seized immediately upon the officer’s “show of force,” the plain view doctrine permitted discovery and admissibility of the marijuana and currency observed by the officers approaching defendant’s side of the vehicle. Slip Op. at 11. The “brief period” between the show of force and the officers recognizing the items on defendant’s lap did not justify granting defendant’s motion to suppress. Id.

The court then turned to defendant’s argument that the officers could not identify the unburnt marijuana as an illegal substance since industrial hemp is legal in North Carolina and is virtually indistinguishable by smell or visual identification. The court disagreed, noting that “there was more present than just the smell or visual identification . . . [t]here was the evidence of drug distribution, the currency beside the marijuana and [d]efendant’s possession of marijuana near his waistband.” Id. at 13-14. Because of the additional evidence to support reasonable suspicion, the court overruled defendant’s argument.